Chapter 23. Adoption.
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.
Sec. 25.23.010. Who may be adopted.
Any person may be adopted.
Sec. 25.23.020. Who may adopt.
(a) 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
(A) the other spouse is a parent of the person to be adopted and consents to the adoption;
(B) the petitioner and the other spouse are legally separated; or
(C) 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.
(b) Nothing in this section affects legitimation under AS 25.20.050.
Sec. 25.23.030. Venue.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
Sec. 25.23.040. Persons required to consent to adoption.
(a) 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.
(b) 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.
Sec. 25.23.050. Persons as to whom consent and notice not required.
(a) 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,
(A) to communicate meaningfully with the child; or
(B) 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.
(b) 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.
Sec. 25.23.060. Execution of consent; consent as power of attorney.
Sec. 25.23.060. Execution of consent; consent as power of attorney.
(a) 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.
(b) 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.
(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).
(a) 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.
(b) 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.
(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 on the Placement of Children).
Sec. 25.23.070. Withdrawal of consent.
(a) A consent to adoption may not be withdrawn after the entry of a decree of adoption.
(b) 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.
Sec. 25.23.080. Petition for adoption.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
Sec. 25.23.090. Report of petitioner’s expenditures.
(a) 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.
(b) This section does not apply to an adoption by a stepparent whose spouse is a natural or adoptive parent of the child.
(c) A report made under this section shall be signed and verified by the petitioner.
Sec. 25.23.100. Notice of petition, investigation, and hearing.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) [Repealed, § 22 ch 140 SLA 1986.]
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).
Sec. 25.23.120. Hearing.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
Sec. 25.23.125. Preference of minor to be adopted; guardian ad litem; protective orders.
(a) 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.
(b) 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).
(c) The court may issue a protective order or other order that is in the best interest of a minor who is to be adopted.
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.
Sec. 25.23.130. Effect of adoption decree; effect of termination of parental rights.
(a) 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.
(b) 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.
(c) Nothing in this chapter prohibits an adoption that allows visitation between the adopted person and that person’s natural parents or other relatives.
(d) 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.
(e) 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.
(f) 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.
Sec. 25.23.140. Appeal and validation of adoption decree.
(a) 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.
(b) 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.
(c) 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.
Sec. 25.23.150. Confidential nature of hearings and records in adoption proceedings.
(a) 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.
(b) 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.
(c) 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).
(d) 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.
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.
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.
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).
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.
Sec. 25.23.180. Relinquishment and termination of parent and child relationships.
(a) 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.
(b) 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.
(c) 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
(A) specified in AS 47.10.080(o) or 47.10.088; or
(B) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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.
(n) 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.
(o) 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.
Sec. 25.23.185. Records and information.
(a) 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.
(b) 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.
(c) 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.
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.
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.
Sec. 25.23.210. Amount and duration of subsidy payments.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) Subsidies shall be paid from the same public funds and in the same manner as foster care payments.
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.
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.
Chapter 24. Divorce and Dissolution of Marriage.
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.
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.
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.
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.
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
(A) cruel and inhuman treatment calculated to impair health or endanger life;
(B) personal indignities rendering life burdensome; or
(C) 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.
Sec. 25.24.060. Mediation.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
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.
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.
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.
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.
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.
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.
Sec. 25.24.140. Orders during action.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
Sec. 25.24.150. Judgments for custody; supervised visitation.
(a) 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.
(b) If a guardian ad litem for a child is appointed, the appointment shall be made under the terms of AS 25.24.310(c).
(c) The court shall determine custody in accordance with the best interests of the child under AS 25.20.060 — 25.20.130. In determining the best interests of the child the court shall consider
(1) the physical, emotional, mental, religious, and social needs of the child;
(2) the capability and desire of each parent to meet these needs;
(3) the child’s preference if the child is of sufficient age and capacity to form a preference;
(4) the love and affection existing between the child and each parent;
(5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(6) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, except that the court may not consider this willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in domestic violence against the parent or a child, and that a continuing relationship with the other parent will endanger the health or safety of either the parent or the child;
(7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents;
(8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;
(9) other factors that the court considers pertinent.
(d) In awarding custody the court may consider only those facts that directly affect the well-being of the child.
(e) 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).
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
Sec. 25.24.152. Children as dependents for tax purposes.
(a) 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.
(b) In this section, “noncustodial parent” means the parent who has actual physical custody of the child for less time than the other parent.
Sec. 25.24.155. Reservation of issues.
(a) 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.
(b) 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.
Sec. 25.24.160. Judgment.
(a) 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:
(A) the length of the marriage and station in life of the parties during the marriage;
(B) the age and health of the parties;
(C) 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;
(D) the financial condition of the parties, including the availability and cost of health insurance;
(E) the conduct of the parties, including whether there has been unreasonable depletion of marital assets;
(F) the division of property under (4) of this subsection; and
(G) 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:
(A) the length of the marriage and station in life of the parties during the marriage;
(B) the age and health of the parties;
(C) 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;
(D) the financial condition of the parties, including the availability and cost of health insurance;
(E) the conduct of the parties, including whether there has been unreasonable depletion of marital assets;
(F) 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;
(G) the circumstances and necessities of each party;
(H) the time and manner of acquisition of the property in question; and
(I) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
Sec. 25.24.165. Change of name in divorce or annulment.
(a) 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.
(b) 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.
Sec. 25.24.170. Modification of judgment.
(a) 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.
(b) 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.
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.
Sec. 25.24.200. Dissolution of marriage.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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).
(f) 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.
Sec. 25.24.210. Petition for dissolution.
(a) 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 …………..”
(b) 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.
(c) The petition shall state that the spouse or spouses executing the petition consent to the jurisdiction of the court.
(d) The petition shall request that the marriage be dissolved and that the name of a spouse be changed, if desired by that spouse.
(e) 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:
(A) a criminal charge of a crime involving domestic violence;
(B) a protective order under AS 18.66.100 – 18.66.180;
(C) injunctive relief under former AS 25.35.010 or 25.35.020; or
(D) 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.
(f) 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.
Sec. 25.24.220. Hearing.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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:
(A) a criminal charge of a crime involving domestic violence;
(B) a protective order under AS 18.66.100 – 18.66.180;
(C) injunctive relief under former AS 25.35.010 or 25.35.020; or
(D) 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.
(i) 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.
Sec. 25.24.230. Judgment.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
Sec. 25.24.232. Children as dependents for tax purposes.
(a) 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.
(b) In this section, “noncustodial parent” means the parent who has actual physical custody of the child for less time than the other parent.
Sec. 25.24.240. Effect and modification of decree.
(a) 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.
(b) 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.
Sec. 25.24.250. Forms.
(a) 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.
(b) 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.
(c) 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.
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.
Sec. 25.24.300. [Renumbered as AS 25.20.140.]
Sec. 25.24.310. Representation of minor.
(a) 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.
(b) 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.
(c) 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.
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.
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.
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.
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.
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.
Sec. 25.24.450. Decree.
(a) If a court finds that the grounds specified under AS 25.24.410 exist, the court may enter a decree of legal separation.
(b) 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.
(c) 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.
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.
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.
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.
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.
Sec. 25.24.990. Definition.
In this chapter, “animal” means a vertebrate living creature not a human being.
Chapter 25. Uniform Interstate Family Support Act.
Secs. 25.25.010 — 25.25.100. [Repealed, § 21 ch 57 SLA 1995.]
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
(A) that has been declared under the law of the United States to be a foreign reciprocating country;
(B) that has established a reciprocal arrangement for child support with this state as provided in AS 25.25.308(b);
(C) 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
(D) 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
(A) 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;
(B) 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;
(C) an individual seeking a judgment determining parentage of the individual’s child; or
(D) 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
(A) owes or is alleged to owe a duty of support;
(B) is alleged but has not been adjudicated to be a parent of a child;
(C) is liable under a support order; or
(D) 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
(A) seek enforcement of support orders or laws relating to the duty of support;
(B) seek establishment or modification of child support orders;
(C) request determination of parentage of a child;
(D) attempt to locate obligors or their assets; or
(E) 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.
Sec. 25.25.102. State tribunal and support enforcement.
(a) The superior court and the child support services agency are the tribunals of this state.
(b) The child support services agency created in AS 25.27.010 is the support enforcement agency of this state.
Sec. 25.25.103. Remedies cumulative.
(a) 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.
(b) 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.
Sec. 25.25.104. Application of this chapter to resident of foreign country and foreign support proceeding.
(a) 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.
(b) 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.
(c) 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.
Secs. 25.25.110 — 25.25.200. [Repealed, § 21 ch 57 SLA 1995.]
Sec. 25.25.201. Bases for jurisdiction over nonresident.
(a) 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.
(b) 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.
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.
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.
Sec. 25.25.204. Simultaneous proceedings.
(a) 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.
(b) 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.
Sec. 25.25.205. Continuing, exclusive jurisdiction to modify child support order.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) A temporary support order issued ex parte or pending resolution of a jurisdictional conflict does not create continuing, exclusive jurisdiction in the issuing tribunal.
(f) [Repealed, § 32 ch 102 SLA 2015.]
Sec. 25.25.206. Continuing jurisdiction to enforce child support order.
(a) 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.
(b) A tribunal of this state having continuing jurisdiction over a support order may act as a responding tribunal to enforce the order.
(c) [Repealed, § 32 ch 102 SLA 2015.]
Sec. 25.25.207. Determination of controlling child support order.
(a) 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.
(b) 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,
(A) an order issued by a tribunal in the current home state of the child controls; or
(B) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
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.
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.
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.
Sec. 25.25.281. Continuing, exclusive jurisdiction to modify spousal support order.
(a) 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.
(b) 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.
(c) 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.
Sec. 25.25.301. Proceedings under this chapter.
(a) Except as otherwise provided in this chapter, AS 25.25.301 — 25.25.319 apply to all proceedings under this chapter.
(b) [Repealed, § 32 ch 102 SLA 2015.]
(c) 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.
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.
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.
Sec. 25.25.304. Duties of initiating tribunal.
(a) 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.
(b) 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.
Sec. 25.25.305. Duties and powers of responding tribunal.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
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.
Sec. 25.25.307. Duties of child support services agency.
(a) The child support services agency of this state, upon request, shall provide services to a petitioner in a proceeding under this chapter.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
Sec. 25.25.308. Duty of the Department of Revenue.
(a) 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.
(b) 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.
Sec. 25.25.309. Private counsel.
An individual may employ private counsel to represent the individual in proceedings authorized by this chapter.
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.
Sec. 25.25.311. Pleadings and accompanying documents.
(a) 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.
(b) 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.
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.
Sec. 25.25.313. Costs and fees.
(a) 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.
(b) 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.
(c) 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.
Sec. 25.25.314. Limited immunity of petitioner.
(a) 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.
(b) A petitioner is not amenable to service of civil process while physically present in this state to participate in a proceeding under this chapter.
(c) 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.
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.
Sec. 25.25.316. Special rules of evidence and procedure.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) A privilege against disclosure of communications between spouses does not apply in a proceeding under this chapter.
(i) 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.
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.
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.
Sec. 25.25.319. Receipt and disbursement of payments.
(a) 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.
(b) 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.
(c) 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.
Sec. 25.25.401. Establishment of support order.
(a) 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.
(b) 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.
(c) [Repealed, § 32 ch 102 SLA 2015.]
(d) 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.
(e) Before issuing an order under (b) of this section, the child support services agency shall adopt regulations for issuing such an order.
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.
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.
Sec. 25.25.502. Employer’s compliance with income withholding order of another state.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
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.
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.
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.
Sec. 25.25.506. Contest by obligor.
(a) 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.
(b) 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
(A) a person is designated to receive payments in the income withholding order, to that person; or
(B) no person is designated to receive payments in the income withholding order, to the obligee.
Sec. 25.25.507. Administrative enforcement of orders.
(a) 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.
(b) 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.
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.
Sec. 25.25.602. Procedure to register order for enforcement.
(a) 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,
(A) the obligor’s address and social security number;
(B) the name and address of the obligor’s employer and any other source of income of the obligor; and
(C) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
Sec. 25.25.603. Effect of registration for enforcement.
(a) 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.
(b) 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.
(c) 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.
Sec. 25.25.604. Choice of law.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
Sec. 25.25.605. Notice of registration of order.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
Sec. 25.25.606. Procedure to contest validity or enforcement of registered support order.
(a) 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.
(b) 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.
(c) 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.
Sec. 25.25.607. Contest of registration or enforcement.
(a) 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.
(b) 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.
(c) 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.
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.
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.
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.
Sec. 25.25.611. Modification of child support order of another state.
(a) 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:
(A) neither the child, nor the obligee who is an individual, nor the obligor resides 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) 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.
(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, 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.
(d) 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.
(e) 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.
(f) 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.
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.
Sec. 25.25.613. Jurisdiction to modify support order of another state when individual parties reside in this state.
(a) 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.
(b) 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.
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.
Sec. 25.25.615. Jurisdiction to modify child support order of foreign country.
(a) 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.
(b) An order issued by a tribunal of this state modifying a foreign child support order under this section is the controlling order.
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.
Sec. 25.25.701. Proceeding to determine parentage [Repealed, § 102 ch 32 SLA 2015.]
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”
(A) means an agreement for support in a record that
(i) is enforceable as a support order in the country of origin;
(ii) 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
(iii) may be reviewed and modified by a foreign tribunal;
(B) 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.
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.
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.
Sec. 25.25.705. Initiation by child support services agency of support proceeding under convention.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
Sec. 25.25.706. Direct request.
(a) 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.
(b) 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.
(c) 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.
(d) An individual filing a direct request is not entitled to assistance from the child support services agency.
(e) 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.
Sec. 25.25.707. Registration of convention support order.
(a) 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.
(b) 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.
(c) A request for registration of a convention support order may seek recognition and partial enforcement of the order.
(d) 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.
(e) The tribunal shall promptly notify the parties of the registration or the order vacating the registration of a convention support order.
Sec. 25.25.708. Contest of registered convention support order.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) A tribunal of this state deciding a contest of a registered convention support order shall promptly notify the parties of its decision.
(g) A challenge or appeal, if any, does not stay the enforcement of a convention support order unless there are exceptional circumstances.
Sec. 25.25.709. Recognition and enforcement of registered convention support order.
(a) Except as otherwise provided in (b) of this section, a tribunal of this state shall recognize and enforce a registered convention support order.
(b) 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,
(A) 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
(B) 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.
(c) 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.
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.
Sec. 25.25.711. Foreign support agreement.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
Sec. 25.25.712. Modification of convention child support order.
(a) 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.
(b) 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.
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.
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.
Sec. 25.25.801. Grounds for rendition.
(a) 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.
(b) 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.
Sec. 25.25.802. Conditions of rendition.
(a) 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.
(b) 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.
(c) 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.
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.
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.
Sec. 25.25.903. Short title.
This chapter may be cited as the Uniform Interstate Family Support Act.
Chapter 27. Child Support Services Agency.
Sec. 25.27.010. Creation of child support services agency. There is created in the Department of Revenue the child support services agency.
Sec. 25.27.020. Duties and responsibilities of the agency.
(a) 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
(A) procedures for hearings conducted under AS 25.27.170 and for administrative enforcement of support orders;
(B) 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
(i) employed and income is being withheld from the obligor’s wages under an income withholding order;
(ii) receiving unemployment compensation and child support obligations are being withheld from the obligor’s unemployment payments under AS 23.20.401; or
(iii) receiving compensation for disabilities under AS 23.30 and child support obligations are being withheld from the obligor’s compensation payments;
(C) procedures for establishing and disestablishing paternity under AS 25.27.165 and 25.27.166, including procedures for hearings; and
(D) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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
(A) 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;
(B) 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
(C) 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.
(g) 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.
(h) The agency may establish by regulation requirements and limitations on eligibility in addition to those stated in (f) and (g) of this section.
Sec. 25.27.022. Establishment and enforcement requests from other states.
(a) 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.
(b) 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.
(c) 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).
(d) 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).
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.
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.
Sec. 25.27.040. Determination of paternity.
(a) 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).
(b) 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.
(c) 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).
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).
Sec. 25.27.050. Legal assistance.
The agency shall contract with the Department of Law to provide needed legal services.
Sec. 25.27.060. Order of support.
(a) 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.
(b) [Repealed, § 21 ch 126 SLA 1977.]
(c) 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.
(d) An order for prospective child support may be modified or revoked under AS 25.24.170.
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.
Sec. 25.27.062. Income withholding order for support.
(a) 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.
(b) 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.
(c) 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
(A) 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
(B) the court approves the request for good cause.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) The court may order payment of all court costs that resulted from an income withholding proceeding under this chapter.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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
(A) 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
(B) 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
(A) 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
(B) 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.
(n) 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.
Sec. 25.27.063. Medical support order.
(a) [Repealed, § 23 ch 106 SLA 2000.]
(b) 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.
(c) 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
(A) the employee is no longer required by court order or administrative order to provide the child’s insurance coverage; or
(B) 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.
Sec. 25.27.065. Waiver of child support.
(a) 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.
(b) 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.
(c) 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.
Sec. 25.27.070. Order to assign wages for support.
(a) 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.
(b) 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.
(c) The assignment made under court order has priority as against an attachment, execution, or other assignment unless otherwise ordered by the court.
(d) An employer may not terminate an employee’s employment because wages of the employee are subject to an order under this section.
Sec. 25.27.075. Employment information.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) An employer may charge $1 to each employee who is reported to the agency under this section to cover the cost of the reporting.
(f) 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.
(g) 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.
Sec. 25.27.080. Enforcement of support orders.
(a) A court order requiring payment of child support shall be modified to order payments be made to the agency upon application.
(b) 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.
(c) 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.
(d) 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.
Sec. 25.27.085. Subpoenas.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) An order imposing a civil penalty under this section is a final administrative decision and may be appealed under AS 25.27.210.
(f) This section does not limit the ability of the agency to make other lawful requests for information.
(g) 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.
Sec. 25.27.086. Subpoenas issued by agency of another state.
(a) 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
(A) financial or other information needed to establish, modify, or enforce a support order; or
(B) 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).
(b) 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.
(c) 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.
(d) The penalties provided in AS 25.27.085 apply regarding a subpoena described in (a) of this section.
(e) 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.
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.
Sec. 25.27.100. All persons may use agency.
(a) 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.
(b) [Repealed, § 148 ch 87 SLA 1997.]
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.
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.
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.
Sec. 25.27.110. [Renumbered as AS 25.27.900.]
Sec. 25.27.120. Obligor liable for public assistance furnished obligee.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
Sec. 25.27.125. Accounting and disposition of federal receipts and agency collections.
(a) 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.
(b) 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.
Sec. 25.27.130. Subrogation of state.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
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.
Sec. 25.27.140. Authority and procedures to administratively establish and enforce support obligation.
(a) 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).
(b) 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.
(c) 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.
Sec. 25.27.150. Initiation of administrative enforcement of orders; required notice.
(a) 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.
(b) The notice must state the amount of the overdue support that is owed, if any, and the amount of income that will be withheld.
(c) 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.
(d) 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.
(e) 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.
(f) If the conference officer determines that withholding will continue, the obligor may request a formal hearing as provided in the department’s regulations.
Sec. 25.27.160. Initiation of administrative action to establish support duty; required notice.
(a) 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.
(b) 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
(A) no duty of support is owed; or
(B) 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.
(c) 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
(A) no duty of support is owed;
(B) health care insurance for the child is not available to the alleged obligor at a reasonable cost;
(C) adequate health care is available to the child through the Indian Health Service or other insurance coverage; or
(D) 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.
Sec. 25.27.165. Determination of paternity in an administrative proceeding.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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).
(h) 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.
(i) 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.
(j) 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.
(k) 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.
Sec. 25.27.166. Disestablishment of paternity.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
Sec. 25.27.167. Contempt of order for genetic testing.
(a) 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.
(b) 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.
(c) After service under (b) of this section, the court has jurisdiction of the matter brought under this section.
(d) 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.
Sec. 25.27.170. Hearings in administrative action to establish support duty.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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).
Sec. 25.27.180. Administrative findings and decision.
(a) 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).
(b) 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.
(c) 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.
Sec. 25.27.190. Modification of administrative finding or decision.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
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.
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.
Sec. 25.27.195. Relief from administrative order.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
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.
Sec. 25.27.210. Judicial review of administrative decisions and actions.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
Sec. 25.27.220. Procedure in judicial reviews.
(a) An appeal shall be heard by the superior court sitting without a jury.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) A stay may not be imposed or continued if the court is satisfied that it is against the public interest.
(h) If further appeal is taken, the supreme court may, in its discretion, stay the superior court judgment or agency order.
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.
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.
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.
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.
Sec. 25.27.230. Assertion, recording, and effect of lien.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
Sec. 25.27.240. Service of lien.
(a) 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.
(b) 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.
Sec. 25.27.244. Adverse action against delinquent obligor’s occupational license.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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.
(n) 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.
(o) 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.
(p) The agency and licensing entities, as appropriate, shall adopt regulations necessary to implement this section.
(q) 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.
(r) 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.
(s) In this section,
(1) “applicant” means a person applying for issuance or renewal of a license;
(2) “license”
(A) 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:
(i) license relating to boxing or wrestling under AS 05.10;
(ii) authorization to perform an occupation regulated under AS 08;
(iii) teacher certificate under AS 14.20;
(iv) authorization under AS 18.08 to perform emergency medical services;
(v) asbestos worker certification under AS 18.31;
(vi) boiler operator’s license under AS 18.60.395;
(vii) certificate of fitness under AS 18.62;
(viii) hazardous painting certification under AS 18.63;
(ix) security guard license under AS 18.65.400 — 18.65.490;
(x) license relating to insurance under AS 21.27;
(xi) employment agency permit under AS 23.15.330 — 23.15.520;
(xii) registration as a broker-dealer, an agent, an investment adviser, or an investment adviser representative under AS 45.56.300 — 45.56.350;
(xiii) certification as a pesticide applicator under AS 46.03.320;
(xiv) certification as a storage tank worker or contractor under AS 46.03.375;
(xv) certification as a water and wastewater works operator under AS 46.30;
(xvi) commercial crewmember fishing license under AS 16.05.480 other than an entry permit or interim-use permit under AS 16.43;
(xvii) fish transporter permit under AS 16.05.671;
(xviii) [Repealed, § 5 ch 30 SLA 2016.]
(xix) [Repealed, § 5 ch 30 SLA 2016.]
(B) does not include
(i) a vessel license issued under AS 16.05.490 or 16.05.530;
(ii) a business license issued under AS 43.70;
(iii) an entry permit or interim-use permit issued under AS 16.43; or
(iv) 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
(A) no arrearage;
(B) an arrearage in an amount that is not more than four times the monthly obligation under the support order or payment schedule; or
(C) 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.
Sec. 25.27.246. Adverse action against delinquent obligor’s driver’s license.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) The agency and department, as appropriate, shall adopt regulations necessary to implement this section.
(n) 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.
(o) 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.
(p) 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.
(q) 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
(A) no arrearage;
(B) an arrearage in an amount that is not more than four times the monthly obligation under the support order or payment schedule; or
(C) 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.
Sec. 25.27.250. Order to withhold and deliver.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) [Repealed, § 148(a) ch 87 SLA 1997.]
(i) 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.
(j) 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.
Sec. 25.27.253. Earnings subject to an order or lien.
(a) 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.
(b) 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.
Sec. 25.27.255. Disposition of payments under income withholding orders.
(a) 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.
(b) [Repealed, § 34 ch 7 FSSLA 1994.]
(c) [Repealed, § 34 ch 7 FSSLA 1994.]
Sec. 25.27.260. Civil liability upon failure to comply with an order or lien.
(a) 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.
(b) 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.
Sec. 25.27.265. Method of service; notification of change of address.
(a) 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.
(b) 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.
(c) 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.
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.
Sec. 25.27.273. Reporting of payment information concerning delinquent obligors.
(a) 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.
(b) 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.
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.
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.
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).
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.
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.
Sec. 25.27.320. Interest on agency return of certain overpayments.
(a) 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.
(b) 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.
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:
(A) monetary support;
(B) cash medical support;
(C) payment of health care costs or maintenance of health insurance;
(D) reimbursement of related costs;
(E) payment of attorney fees and legal costs and other fees;
(F) 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
(A) on behalf of a child who has reached the age of majority if the judgment, decree, or order was lawfully issued; and
(B) for any or all of the following:
(i) monetary support, including arrearages;
(ii) payment of health care costs or maintenance of health insurance;
(iii) payment of cash medical support;
(iv) reimbursement of related costs;
(v) payment of attorney fees and legal costs and other fees; or
(vi) 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.
Chapter 30. Uniform Child Custody Jurisdiction and Enforcement Act.
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.
(a) 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
(A) 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
(B) 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.
(b) The provisions of (a) of this section are the exclusive jurisdictional bases for making a child custody determination by a court of this state.
(c) Physical presence of or personal jurisdiction over a party or a child is not necessary or sufficient to make a child custody determination.
Sec. 25.30.310. Exclusive, continuing jurisdiction.
(a) 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.
(b) 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.
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.
Sec. 25.30.330. Temporary emergency jurisdiction.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
Sec. 25.30.340. Notice; opportunity to be heard; joinder.
(a) 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.
(b) This chapter does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.
(c) 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.
Sec. 25.30.350. Simultaneous proceedings.
(a) 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.
(b) 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.
(c) 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.
Sec. 25.30.360. Inconvenient forum.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
Sec. 25.30.370. Jurisdiction declined because of conduct.
(a) 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.
(b) 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.
(c) 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.
Sec. 25.30.380. Information to be submitted to court.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
Sec. 25.30.390. Appearance of parties and child.
(a) 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.
(b) 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.
(c) The court may enter orders necessary to ensure the safety of the child and of a person ordered to appear under this section.
(d) 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.
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.
Sec. 25.30.410. Duty to enforce.
(a) 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.
(b) 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.
Sec. 25.30.420. Temporary visitation.
(a) 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.
(b) 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.
Sec. 25.30.430. Registration of child custody determination.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
Sec. 25.30.440. Enforcement of registered determination.
(a) 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.
(b) 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.
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.
Sec. 25.30.460. Expedited enforcement of child custody determination.
(a) 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.
(b) 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.
(c) 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.
(d) 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
(A) the issuing court did not have jurisdiction under provisions substantially similar to AS 25.30.300 — 25.30.390;
(B) 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
(C) 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.
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.
Sec. 25.30.480. Hearing and order.
(a) 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
(A) the issuing court did not have jurisdiction under provisions substantially similar to AS 25.30.300 — 25.30.390;
(B) 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
(C) 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.
(b) 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.
(c) 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.
(d) 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.
Sec. 25.30.490. Warrant to take physical custody of child.
(a) 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.
(b) 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).
(c) 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.
(d) The respondent must be served with the petition, warrant, and order immediately after the child is taken into physical custody.
(e) 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.
(f) The court may impose conditions on placement of a child to ensure the appearance of the child and the child’s custodian.
Sec. 25.30.500. Costs, fees, and expenses.
(a) 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.
(b) The court may not assess costs, fees, or expenses against a state unless authorized by law other than this chapter or by court rule.
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.
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.
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.
Sec. 25.30.800. Proceedings governed by other law.
(a) This chapter does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.
(b) 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).
Sec. 25.30.810. International application of chapter.
(a) 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.
(b) 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.
(c) 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.
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.
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.
Sec. 25.30.840. Notice to persons outside the state.
(a) 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.
(b) 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.
(c) Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.
Sec. 25.30.850. Appearance and limited immunity.
(a) 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.
(b) 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.
(c) 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.
Sec. 25.30.860. Communication between courts.
(a) A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
Sec. 25.30.870. Taking testimony in another state.
(a) 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.
(b) 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.
(c) 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.
Sec. 25.30.880. Cooperation between courts; preservation of records.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
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.
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.
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
(A) 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
(B) 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.
Sec. 25.30.910. Short title.
This chapter may be cited as the Uniform Child Custody Jurisdiction and Enforcement Act.
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.
Title 26. Military Affairs, Veterans, Disasters, and Aerospace.
Chapter 03. Division of Recruitment and Retention.
Sec. 26.03.010. Recruitment and retention division. There is created within the Department of Military and Veterans’ Affairs a division of recruitment and retention.
Sec. 26.03.020. Appointment of director.
The adjutant general shall appoint a director who is at least an administrative officer three.
Sec. 26.03.030. Authority and duties of the director.
The director shall
(1) take the necessary steps to assure that unemployed guardsmen have the opportunity to acquire employment through the state and federal governments;
(2) keep guardsmen advised of all privileges and benefits available to them from the state and federal governments;
(3) act as a coordinator with the state and federal governments in an effort to increase the availability of education and training programs for guardsmen;
(4) compile a list of guardsmen and their educational and training qualifications and submit it to the federal and state agencies for possible job placement;
(5) prepare a program whereby guardsmen are trained in firefighting and related skills and coordinate this effort with state and federal programs; and
(6) provide counseling service for guardsmen in order to find educational, training, and employment opportunities for them.
Chapter 05. Code of Military Justice.
Sec. 26.05.010. Alaska militia established.
(a) The militia of the state consists of all able-bodied citizens of the United States and all other able-bodied persons who have declared their intention to become citizens of the United States, who reside in the state, who are at least 17 years of age, and who are eligible for military service under the laws of the United States or this state.
(b) The militia is divided into two classes:
(1) the organized militia, consisting of the Alaska National Guard, the Alaska Naval Militia, and the Alaska State Defense Force; and
(2) the unorganized militia, consisting of all qualified persons available for service but not serving in the organized militia.
(c) The adjutant general may, by regulation, prescribe the maximum age for eligibility in the militia.
Sec. 26.05.020. Exemption from military service.
The following are exempt from militia service: persons exempt by the laws of the United States, judges of the courts of the state, and members and officers of the state legislature.
Sec. 26.05.030. Composition of organized militia.
(a) The Alaska National Guard consists of
(1) members of the militia who have voluntarily enlisted and who, upon original enlistment, are organized, armed, equipped, and federally recognized according to the laws of the United States; and
(2) commissioned officers and warrant officers who are citizens of the United States, having the qualifications prescribed by federal law and regulations, and who are appointed and commissioned or warranted by the governor.
(b) Former members of the regular Army, Navy, or Marine Corps under 64 years of age may enlist in the Alaska Militia.
(c) The Alaska Naval Militia consists of units authorized by the governor, organized, equipped, trained, and administered as prescribed by state and federal law and regulation, and manned by personnel who are
(1) members of the United States Naval Reserve or the United States Marine Corps Reserve and
(2) enlisted, appointed, commissioned, or warranted under the laws and regulations of the United States.
(d) The Alaska State Defense Force consists of units authorized by the governor and manned by volunteer personnel qualifying under state law and regulation. All Alaska State Defense Force personnel shall be
(1) appointed, commissioned, or warranted, and assigned by the governor or the adjutant general as the governor’s designee;
(2) subject to serve on state active duty at the call and by order of the governor.
(e) [Repealed, § 102 ch 127 SLA 1974.]
Sec. 26.05.040. Ratification and confirmation of existing military forces. [Repealed, § 38 ch 30 SLA 1992.]
Sec. 26.05.050. Authority for organization.
The governor as commander in chief may organize units in communities so requesting and specifically provide for organization of at least two scout battalions in the western and northwestern coastal areas and northern Arctic regions of the state, in accordance with special authority of the United States Department of Defense.
Sec. 26.05.060. Control of Alaska National Guard and Alaska Naval Militia.
The governor as ex officio commander of the militia of the state has command of the Alaska National Guard and the Alaska Naval Militia while they are not in active federal service. The governor may adopt necessary regulations for them. The Alaska National Guard and the Alaska Naval Militia and their members are subject to all federal laws and regulations relating to the National Guard and Naval Militia of the several states and territories and of the United States.
Sec. 26.05.070. Governor may order organized militia into active state service.
In the event of war, disaster, insurrection, rebellion, tumult, catastrophe, wildland fire, invasion, or riot; or if a mob or body of men act together by force with intent to commit a felony or to offer violence to persons or property, or by force and violence to break and resist the laws of the state, or the United States; or in the case of imminent danger of the occurrence of any of these events; or whenever responsible civil authorities fail to preserve law and order, or protect life and property, or the governor believes that failure is imminent, the governor may order the organized militia or any part of it, into active state service to execute the laws and to perform duties in connection with them that the governor considers proper. Whenever any portion of the militia is ordered into active state service by the governor, it becomes an additional police force, retaining its separate entity and operating at all times as a military organization under military command, with power to cooperate with but not to supersede the existing civilian law enforcement officers whenever possible, for the re-establishment of law and order and for the protection of life and property. The governor may also order members of the organized militia to active state service, with their consent, for the purpose of training or for full-time duty with the office of the adjutant general. In the event of wildland fire, the governor may delegate to the adjutant general the governor’s authority under this section to order some or all of the organized militia into active state service to fight wildland fire. In this section, “wildland fire” includes the uncontrolled burning of grass, brush, timber, and other vegetative material.
Sec. 26.05.075. Leave and reemployment rights of the organized militia.
(a) An employer shall grant a leave of absence to an employee who is
(1) a member of the organized militia to perform active state service under AS 26.05.070; or
(2) a resident of the state and a member of the National Guard of another state to perform active National Guard service under a law of that state.
(b) When an employee is released from a period of active state service under AS 26.05.070 or active National Guard service under the law of another state, or discharged from hospitalization that arose from that active service, the employee is entitled to return to the employee’s former position, or a comparable position, at the pay, seniority, and benefit level the employee would have had if the employee had not been absent as a result of that active service. An employee, other than an employee who has been hospitalized, shall report for work at the beginning of the workday following the last calendar day necessary to travel from the site of active state service, or active National Guard service in another state, to the employee’s work site. An employee who has been hospitalized shall report for work at the beginning of the workday following the last calendar day necessary to travel from the hospital or place of recuperation to the employee’s work site. If the employee fails to return to work at that time, the employer may impose whatever discipline is provided by the employer’s rules of conduct for unexcused absence from work.
(c) If an employee is not qualified to perform the duties of the employee’s position as a result of permanent disability sustained because of the employee’s active state service but is qualified to perform the duties of another position with the employer, the employer shall offer an employee who requests reemployment the available, vacant position that most closely approximates the pay and benefits of the employee’s previous position and that the employee is qualified for and capable of performing. An employee loses the right to reemployment under this subsection unless the employee requests reemployment within 30 days after receiving a statement from the employee’s treating physician indicating both that the employee has reached maximum recovery and that the employee is released to return to full-time work.
(d) For employees other than state employees, the Department of Labor and Workforce Development shall enforce this section by appropriate regulations. For state employees, the division of personnel in the Department of Administration shall enforce this section. Regulations adopted under this section may provide for orders of reinstatement and back pay if appropriate. For employees other than state employees, contested cases arising under this section are to be handled under AS 44.62.330 — 44.62.630. Appeals involving state employees must be made to the personnel board under the procedure set out in the state’s personnel rules for grievances.
(e) Notwithstanding (f) of this section, a person aggrieved under this section may bring an action in superior court no sooner than 30 days after giving notice to the Department of Labor and Workforce Development, or, in the case of a state employee, to the director of the division of personnel. The action must be brought within two years after the claim arose.
(f) A collective bargaining agreement entered into in the state after September 2, 1990 may not contain provisions contrary to this subsection.
(g) This section does not affect AS 39.20.340 or 39.20.350 governing paid leave and reinstatement of state and local employees for certain military activities.
(h) An employee is not entitled to return to the employee’s former position, or a comparable position, at the pay, seniority, and benefit level the employee would have had if
(1) the employer’s circumstances have changed, making employment impossible or unreasonable; or
(2) employment would impose an undue hardship on the employer.
(i) In this section, “state” has the meaning given in AS 01.10.060.
Sec. 26.05.080. Decision of governor final.
Whenever any portion of the militia is ordered to duty by the governor, the decision of the governor in this matter is final.
Sec. 26.05.090. Proclamations of martial law.
The governor may proclaim martial law when the public safety requires it in case of rebellion or actual or imminent invasion, and may order all or any part of the organized militia into active state service to enforce the proclamation. The militia shall assume only those functions of civil government specified by the governor, or those that, in the discretion of the militia commander, must be assumed in order to accomplish a specific mission assigned by the governor. Martial law may not continue for longer than 20 days without the approval of a majority of the members of the legislature in joint session.
Sec. 26.05.100. Alaska State Defense Force.
A state militia, known as the Alaska State Defense Force, may be organized through voluntary enlistments under regulations as to discipline and training that may be prescribed by the governor. During the time that the Alaska National Guard or the Alaska Naval Militia, or any part of either of them, is not available to the state by reason of active federal service, or the National Guard or Naval Militia requires augmentation to perform its state mission, the governor may activate the Alaska State Defense Force.
Sec. 26.05.110. Governor may order unorganized militia into active service.
In the event of imminent invasion by a foreign power and for the same reasons set forth in AS 26.05.070, if the governor has ordered into active service all of the available organized militia or if the organized militia is in active federal service, the governor may order the unorganized militia or any portion of it considered necessary into active service, and have them perform military duty for the state subject to this chapter, as the circumstances require.
Secs. 26.05.120 — 26.05.130. Penalty for failure to obey call; penalty for physician making false certificate.
Sec. 26.05.135. Applicability of Servicemembers Civil Relief Act to members of the organized militia; contracts.
(a) The provisions of 50 U.S.C. 3901 — 4043 (Servicemembers Civil Relief Act), pertaining to consumer transactions and the temporary suspension of enforcement of civil liabilities of persons in the military service of the United States apply to members of the organized militia while on active duty for the state by order of the governor.
(b) In addition to the rights and protections provided under 50 U.S.C. 3901 — 4043 (Servicemembers Civil Relief Act) and (a) of this section, a servicemember may terminate a contract for any of the following services provided in this state if the servicemember receives official orders to relocate for a period of military service of at least 90 days to a location that does not support the contract and the servicemember provides written notice to the service provider as required under (c) of this section:
(1) Internet services;
(2) athletic club or gym memberships;
(3) satellite radio services; or
(4) television services.
(c) To terminate a contract under (b) of this section, the servicemember shall provide the service provider with (1) written notice that the servicemember is terminating the contract and the date the contract terminates, and (2) proof of the official orders calling the servicemember into active military service. If possible, the servicemember shall provide the proof of the official orders at the same time the servicemember provides written notice terminating the contract. If, because of military necessity or other circumstances, the servicemember is unable to provide proof of official orders at the time the servicemember provides written notice terminating the contract, the servicemember shall provide proof of the official orders not more than 90 days after providing written notice terminating the contract. A termination of contract under this section is effective on the later of the following: the termination date the servicemember indicates in the written notice terminating the contract or the date the servicemember provides the written notice terminating the contract.
(d) A servicemember who terminates a contract under this section may reinstate the contract when the servicemember is no longer in active military service if the servicemember provides written notice not later than 90 days after the active military service ends. Not later than 30 days after receiving a written notice of reinstatement of a contract under this subsection, a service provider shall resume providing services under the contract to the servicemember or, if the services previously provided are no longer available, shall provide substantially similar services to the servicemember.
(e) A service provider may not charge to a servicemember a penalty, fee, or other cost, or retain the deposit of a servicemember, who terminates a contract under this section. A servicemember who terminates a contract under this section is not liable for payment for any services after the effective date of the termination of a contract under this section.
(f) In this section,
(1) “organized militia” includes the units of the militia described in AS 26.05.010(b)(1);
(2) “servicemember” means a member of the armed forces of the United States or a member of the organized militia of the state.
Sec. 26.05.140. Suits against officers and enlisted persons.
(a) Members of the militia ordered into active service for the state by order of the governor are not liable civilly for any act done by them in their official capacity while in such service. If a suit is commenced in a court against an officer or enlisted person of the militia as a result of an act done by the officer or enlisted person in an official capacity while in active service, the defendant may be defended by the attorney general at the expense of the state but the defendant may employ private counsel. Nothing in this subsection applies to a proceeding or action brought under this chapter or the code of military justice.
(b) The state has not waived its sovereign immunity and is not liable for the acts or omissions of members of the organized militia, unless those members were ordered into active state service by the governor under AS 26.05.070 and the members were acting in the line of duty of those orders. This subsection does not apply to a civil action for damages as a result of intentional misconduct within the course and scope of employment or agency and with complete disregard for the safety and property of others.
Sec. 26.05.145. Suits by members of the military services.
(a) A civil action for damages may not be brought by or on behalf of a member of the military services against the state or against any employee of the state or any member or former member of the Alaska militia for wrongful death, personal injury, or other tort claim or injury arising out of activities that were incident to the member’s military service.
(b) This section does not apply to a civil action for damages as a result of intentional misconduct within the course and scope of employment or agency and with complete disregard for the safety and property of others.
(c) In this section, “military service” means service in the United States military, the militia described in AS 26.05.010(b), or the national guard of another state.
Sec. 26.05.150. Not liable for exercise of judgment.
A commanding officer of the Alaska militia engaged under proper authority in the suppression of any of those acts listed in AS 26.05.070 may determine the means to be used in controlling or dispersing any mob or other unlawful assembly. A commanding officer who exercises this discretion is not liable in either a civil or criminal action for an act done in the line of duty.
Sec. 26.05.160. Appointment, qualifications, and duties of adjutant general.
(a) The adjutant general of the state is appointed by the governor. In appointing the adjutant general, the governor may give preference to a person who has served at least five years in the Alaska Army National Guard or the Alaska Air National Guard. The governor shall prescribe the grade of the adjutant general, which may not exceed lieutenant general. To be eligible for appointment as adjutant general, a person must be a citizen of the state and must be a federally recognized general-grade officer in the Alaska National Guard or an officer who has the qualifications to gain federal recognition as a general-grade officer either in active status or in retirement status eligible for reappointment as a general-grade officer. The adjutant general shall make returns and reports to the Chief, National Guard Bureau, and to the governor or to the officers designated by the Chief, National Guard Bureau, and the governor, at the times and in the form prescribed.
(b) The adjutant general shall execute a bond running to the state in the penal sum of $20,000 conditioned upon the faithful performance of the adjutant general’s duties. The attorney general shall approve the bond and the bond shall be filed with the Department of Administration. The state shall pay the cost of the bond.
(c) The adjutant general is the official liaison between the state and the active military in the state. The adjutant general shall provide advice and assistance to state agencies having dealings with the active military in the state.
(d) The adjutant general is the official liaison between the state and the federal Department of Veterans Affairs. The adjutant general shall provide advice and assistance to state agencies having dealings with the federal Department of Veterans Affairs.
(e) The adjutant general is the official liaison between the state and the Federal Emergency Management Agency in the state. The adjutant general shall provide advice and assistance to state agencies having dealings with the Federal Emergency Management Agency.
Sec. 26.05.170. Governor’s command and instructions exercised through the adjutant general.
The governor’s command is exercised through the adjutant general, who shall carry out the policies of the governor in military affairs. The adjutant general represents the governor and shall act in conformity with the governor’s instructions. The adjutant general shall exercise control over the military department of the state.
Sec. 26.05.180. Headquarters staff of Alaska National Guard.
(a) The headquarters of the Alaska National Guard is composed of an Army National Guard component, an Air National Guard component and a Naval Militia component. The Army National Guard component and the Air National Guard component shall each be commanded by an assistant adjutant general appointed by the adjutant general with the concurrence of the governor. An assistant adjutant general shall, while holding office, have the grade of brigadier general or a lower grade that the adjutant general may prescribe. On initial appointment an assistant adjutant general must hold a federally-recognized field-grade commission with at least five years service in the Alaska Army National Guard or in the Alaska Air National Guard.
(b) The adjutant general may appoint necessary officers, enlisted persons, and civilian employees to the headquarters staff.
Sec. 26.05.185. Assistant adjutant general for space and missile defense.
(a) The adjutant general, with the concurrence of the governor, may appoint an assistant adjutant general for space and missile defense. The adjutant general for space and missile defense is the official military representative of the state in matters pertaining to the development and deployment of a missile defense program in this state.
(b) The assistant adjutant general for space and missile defense shall be a federally recognized general-grade officer in the Alaska National Guard or an officer in the grade of colonel in the Alaska National Guard who has qualifications to gain federal recognition as a general-grade officer.
(c) The position of assistant adjutant general for space and missile defense is authorized for the duration of the development and deployment of a missile defense program in this state, subject to the availability of federal funding for that purpose.
Sec. 26.05.190. Administration.
(a) The adjutant general shall adopt and publish orders and regulations not contrary to law that in the adjutant general’s judgment are necessary to bring the organizations, armament, equipment, and discipline of the organized militia to a high degree of efficiency. The adjutant general shall perform all the administrative functions incident to the operation of the Alaska National Guard and the Alaska Naval Militia. In addition the adjutant general shall have an inventory taken at least once each year of all state military stores, property, and funds under the jurisdiction of the adjutant general.
(b) [Repealed, § 35 ch 126 SLA 1994.]
(c) [Repealed, § 1 ch 37 SLA 1968.]
(d) [Repealed, § 1 ch 66 SLA 1967.]
(e) The adjutant general shall maintain the Alaska Decoration of Honor Roll.
Sec. 26.05.200. Officers’ qualifications, appointment, and tenure.
A person may not be commissioned or warranted in an office of the National Guard or the Naval Militia of the state unless the person is examined and adjudged qualified for the office by an examining board appointed by the commander in chief, except that at the discretion of the adjutant general the proceedings of federal examining boards may be accepted instead of a state board. The composition, appointment, and procedure of examining boards and the nature and scope of examinations shall be as prescribed by the military laws or regulations of the United States or this state.
Sec. 26.05.210. Removal of officers.
(a) The adjutant general and the assistant adjutants general serve at the pleasure of the governor.
(b) When federal recognition of an officer’s commission or warrant has been withdrawn, the officer’s state appointment as a commissioned or warrant officer may be terminated, and the commission or warrant vacated upon the recommendation of the adjutant general and approval of the governor.
(c) When a commissioned or warrant officer has successfully completed the prescribed term of service so as to be eligible for retirement, the officer may be placed upon the retired list upon the recommendation of the adjutant general and approval of the governor.
(d) Commissioned or warrant officers may tender their resignations through National Guard or Naval Militia command channels. Resignations shall be in writing, stating the reason for resignation, and shall take effect when accepted by the adjutant general upon the approval of the governor.
Sec. 26.05.220. Retired list.
A commissioned officer and enlisted person upon reaching the maximum age prescribed for active duty by appropriate regulations and a commissioned officer or enlisted person who is disabled or incapacitated for active duty through no personal fault or dereliction, and a commissioned officer or enlisted person who serves honorably with the Alaska National Guard or with the Alaska Naval Militia in any capacity and is unable to perform further active duty due to limitations imposed by appropriate regulations may be placed upon the retired list upon recommendation by the adjutant general and approval of the governor.
Sec. 26.05.222. Creation and administration of Alaska National Guard and Alaska Naval Militia retirement system.
(a) There is established an Alaska National Guard and Alaska Naval Militia retirement system. The commissioner of administration shall administer the Alaska National Guard and Alaska Naval Militia retirement system.
(b) The commissioner of administration may adopt regulations to implement the Alaska National Guard and Alaska Naval Militia retirement system. Regulations adopted by the commissioner under this subsection relate to the internal management of state agencies and their adoption is not subject to AS 44.62 (Administrative Procedure Act).
Sec. 26.05.223. Commencement of participation in system.
A member of the Alaska National Guard or Alaska Naval Militia shall be included in this system upon commencement of membership in the Alaska National Guard, or on January 1, 1973, whichever is later, or upon commencement of membership in the Alaska Naval Militia or on July 1, 1980, whichever is later.
Sec. 26.05.224. Retirement benefits.
(a) An active member of the Alaska National Guard, or a former member who was an active member on or after January 1, 1969, or a member of the Alaska Naval Militia on or after July 1, 1980, is eligible for a retirement pension
(1) upon voluntary retirement from the Alaska National Guard or Alaska Naval Militia after a total of 20 years or more of satisfactory service in the Alaska National Guard, Alaska Naval Militia, or the armed forces of the United States, and the reserves of them, or any combination of service in these components if at least five years of the service is in the Alaska National Guard or Alaska Naval Militia; or
(2) upon involuntary separation because of federal standards imposed on the Alaska National Guard or Alaska Naval Militia, regardless of length of service, unless the separation occurs as a result of the member’s own misconduct, misrepresentation, or unwillingness to satisfy established standards for continued participation.
(b) The retirement pension is $100 a month, payable for the same number of months that the member participated satisfactorily in the Alaska National Guard or Alaska Naval Militia. The member may instead elect to receive the retirement pension
(1) in a lump sum that is actuarially determined to be equal to the value, at the time of retirement, of the entire pension due; or
(2) in a monthly amount that will result in payment by the member’s 72nd birthday of an amount that is determined to be the actuarial equivalent of the entire pension due at the time of retirement.
(c) An eligible member or former member may elect to receive the retirement pension beginning on the first day of the month in which the member or former member becomes eligible for retirement, or the member or former member may elect to defer payment to a later date. Payment of a deferred retirement benefit may not begin until application for the benefit is filed with and approved by the Department of Military and Veterans’ Affairs. Deferred retirement payments shall be made monthly at the rate of $100, unless the member elects another form of payment under (b) of this section.
(d) Upon the death of an active member who has at least five years service in the Alaska National Guard or Alaska Naval Militia or a combination of these components, the member’s designated beneficiary is entitled to a lump sum benefit calculated in accordance with (b) of this section. Upon the death of a former member who has at least 20 years service, the former member’s designated beneficiary is entitled to a lump sum benefit calculated in accordance with (b) of this section less any retirement benefits previously paid. Except as provided in (e) of this section, a member may change or revoke the designation of a beneficiary without notice to the beneficiary at any time. If a member designates more than one beneficiary, each shares equally unless the member specifies a different allocation. The member shall make a designation of a beneficiary or a change or revocation of a beneficiary on a form provided by the Department of Military and Veterans’ Affairs. It is not effective until filed with the Department of Military and Veterans’ Affairs. If a member fails to designate a beneficiary or if no designated beneficiary survives the member, the department, except to the extent provided otherwise in a qualified domestic relations order, shall pay the death benefit under this subsection to the
(1) surviving spouse; or, if there is none surviving,
(2) surviving children in equal parts; or, if there is none surviving,
(3) surviving parents in equal parts; or, if there is none surviving,
(4) member’s estate.
(e) Notwithstanding any previous designation of beneficiary, the spouse of a member at the time of the member’s death automatically becomes the designated beneficiary if the spouse was married to the member during part of the member’s service under this chapter
(1) except to the extent a qualified domestic relations order provides for payment to a former spouse or other dependent of the member; or
(2) unless the member files with the Department of Military and Veterans’ Affairs a revocation of beneficiary and a written consent to the revocation signed by the present spouse and each person entitled to benefits under the order on forms provided by the department; however, consent of the present spouse is not required if the member and the present spouse had been married for less than two years on the date of the member’s death and if the member established when filing the revocation that the member and the spouse were not cohabiting.
(f) A person claiming entitlement to any benefits payable under this section shall provide the department with a marriage certificate, divorce or dissolution decree, or other evidence of entitlement. Documents showing entitlement may be filed with the department immediately after a change in the member’s marital status. If the department does not receive notification of a claim before the date 10 days after the member’s death, the person claiming entitlement to the benefits is not entitled to receive from the Department of Administration or Department of Military and Veterans’ Affairs any benefit already paid under this section.
(g) Except as provided in this subsection or AS 29.45.030(a)(1), amounts held in the system on behalf of a member or other person who is or may become eligible for benefits under the system are exempt from Alaska state and municipal taxes and are not subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge of any kind, either voluntary or involuntary, before they are received by the person entitled to the amount under the terms of the system, and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge, or otherwise dispose of any right to amounts accrued in the system is void. However,
(1) a member’s right to receive benefits or the member contribution account may be assigned
(A) under a qualified domestic relations order; or
(B) to a trust or similar legal device that meets the requirements for a Medicaid-qualifying trust under AS 47.07.020(f) and 42 U.S.C. 1396p(d)(4);
(2) a member may elect to have the taxable portion of the qualifying distributions transferred directly to another plan or individual retirement arrangement qualified under the federal Internal Revenue Code.
(h) Amounts held in the system and benefits payable under this section are exempt from garnishment, execution, or levy as provided in AS 09.38 (Alaska Exemptions Act).
Sec. 26.05.225. Earlier service.
A person who was a member of the Alaska National Guard on or after January 1, 1969, is entitled to credit for service to the state and former territory of Alaska as a member of the National Guard and Territorial Guard before and after January 1, 1969, in determining eligibility for retirement benefits under AS 26.05.224.
Sec. 26.05.226. Contributions.
(a) The Department of Military and Veterans’ Affairs shall contribute to the Alaska National Guard and Alaska Naval Militia retirement system the amounts determined by the Alaska Retirement Management Board as necessary to
(1) fund the system based on the actuarial requirements of the system as established by the Alaska Retirement Management Board; and
(2) administer the system.
(b) The amount required for contributions from the Department of Military and Veterans’ Affairs under (a) of this section shall be included in the annual appropriations made to the Department of Military and Veterans’ Affairs.
Sec. 26.05.227. [Renumbered as AS 26.05.229.]
Sec. 26.05.228. Accounting and investment.
(a) The commissioner of administration shall establish a military retirement trust fund for the system in which the assets of the system are deposited and held. The commissioner shall maintain accounts and records for the system.
(b) All income of the fund and all disbursements made by the fund shall be credited or charged, whichever is appropriate, to the following accounts:
(1) an individual account for each retired member of the system that records the benefits paid under this system to the member or surviving beneficiary;
(2) a separate account for the Department of Military and Veterans’ Affairs’ contribution to fund the system based on the actuarial requirements of the system as established by the commissioner of administration under AS 26.05.222 — 26.05.229;
(3) an expense account for the system; this account is charged with all disbursements representing administrative expenses incurred by the system; expenditures from this account are included in the governor’s budget for each fiscal year.
(c) The Alaska Retirement Management Board is the fiduciary of the fund and has the same powers and duties under this section in regard to the fund as are provided under AS 37.10.220.
Sec. 26.05.229. Definitions.
In AS 26.05.222 — 26.05.228,
(1) “beneficiary” means a person designated by a member in a writing filed with the system by the member while alive to receive benefits that may be due from the system upon the death of the member;
(2) “member” means a commissioned or warrant officer or an enlisted person in the Alaska National Guard or Alaska Naval Militia;
(3) “qualified domestic relations order” means a divorce or dissolution judgment under AS 25.24, including an order approving a property settlement, that
(A) creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a member;
(B) sets out the name and last known mailing address, if any, of the member and of each alternate payee covered by the order;
(C) sets out the amount or percentage of the member’s benefit, or of any survivor’s benefit, to be paid to the alternate payee, or sets out the manner in which that amount or percentage is to be determined;
(D) sets out the number of payments or period to which the order applies;
(E) does not require any type or form of benefit or any option not otherwise provided by AS 26.05.222 — 26.05.228;
(F) does not require an increase of benefits in excess of the amount provided by AS 26.05.222 — 26.05.228, determined on the basis of actuarial value; and
(G) does not require the payment, to an alternate payee, of benefits that are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order;
(4) “system” means the Alaska National Guard and Alaska Naval Militia retirement system.
Sec. 26.05.230. Armories, training sites, and maintenance facilities.
(a) Buildings and sites for armory purposes may be leased or constructed, based upon location and size of units to be organized, and shall be financed through state and federal appropriations or both. These facilities may be made available by local communities or by the cooperative arrangement between the state and the federal government and any local community. Leasing and construction under this subsection are governed by AS 36.30 (State Procurement Code).
(b) The armory of each battalion, company, or other unit is subject to the order of the adjutant general and under the charge of its armory board which shall keep in the armory all property furnished by the state. Except for scout battalions organized under special authority of the Secretary of the Army, a unit may not be furnished with arms or equipment until a suitable armory is provided for their deposit. Subject to regulations adopted by the adjutant general, an armory may be used for any reasonable and legitimate civilian activity so long as the activity does not interfere with its use for military purposes. Proceeds received as rental or otherwise at an armory from nonmilitary use shall be deposited in the general fund.
(c) The adjutant general shall administer all target ranges belonging to or leased by the state for National Guard purposes. Gallery ranges may be maintained at all armories occupied by state troops and every command shall be given suitable instruction in marksmanship under direction of its commander, and regulations as authorized by the adjutant general.
Sec. 26.05.235. Active duty training sites.
Unless prohibited by federal regulation, no less than once every two training years, each unit of the Alaska Army National Guard shall train for annual active duty training at a site other than its regular base training site. Every effort shall be made to select a training site in a different type of environment from that of the regular base training site.
Sec. 26.05.240. Enlisted persons.
An able-bodied person of good character who is a citizen of the United States or has declared an intention of becoming a citizen is eligible for enlistment in the National Guard or Naval Militia at the ages and for the periods of time that are prescribed in federal or state regulations in effect at time of enlistment.
Sec. 26.05.250. Discharges.
An enlisted person who is discharged from service in the organized militia of the state shall receive a notice of discharge in writing in the form and classification prescribed by state law or regulations. In time of peace or when there is no declaration of national emergency, a discharge may be given before the expiration of terms of enlistment under regulations prescribed by competent authority.
Sec. 26.05.260. Pay and allowances.
(a) The adjutant general is charged with all disbursements of pay and allowances for service of the troops.
(b) When active state service is authorized by the governor or by the adjutant general as the governor’s designee, members of the organized militia are entitled to receive, for each day of active service under AS 26.05.070, pay in an amount equal to the pay received by a member of the regular armed forces of the United States in the same grade and rank as the member of the organized militia.
(c) [Repealed, § 8 ch 56 SLA 1981.]
(d) A member of the organized militia who, while performing duties under AS 26.05.070 or training under AS 26.05.100, including transit to and from the member’s home of record, suffers an injury or disability in the line of duty is entitled to all compensation and benefits available under AS 23.30 (Alaska Workers’ Compensation Act). For a member of the Alaska State Defense Force, compensation and benefits under this subsection are provided as though the member were a state employee. A member of the organized militia who has not been ordered into active state service by the governor under AS 26.05.070 or ordered into training under AS 26.05.100 is not entitled to compensation and benefits under AS 23.30 (Alaska Workers’ Compensation Act).
(e) If a member of the organized militia dies as a result of an injury or disability suffered in the line of duty while performing duties under AS 26.05.070 or training under AS 26.05.100, including transit to and from the member’s home of record, death benefits shall be paid to the persons in the amounts specified in AS 23.30.215. For a member of the Alaska State Defense Force, the death benefits under this subsection are provided as though the member were a state employee. A person is not entitled to death benefits as specified in AS 23.30.215 for a member of the organized militia who dies as a result of an injury or disability suffered in the line of duty but who had not been ordered into active state service by the governor under AS 26.05.070 or ordered into training under AS 26.05.100.
(f) [Repealed, § 8 ch 56 SLA 1981.]
(g) [Repealed, § 8 ch 56 SLA 1981.]
(h) For purposes of computation of benefits under AS 23.30, the earnings of a member of the
(1) Alaska National Guard or Alaska Naval Militia are presumed to be no less than 200 percent of the minimum daily basic pay authorized for a member of the regular armed forces of the United States in the same grade or rank as the Alaska National Guard or Alaska Naval Militia member at the time of the injury or death;
(2) Alaska State Defense Force are presumed to be equal to the pay and allowances authorized by (j) of this section for the duties being performed by the member while on active state service at the time of the injury or death; if the member of the Alaska State Defense Force did not receive pay or allowances authorized under (j) of this section, the earnings of the member are presumed to be no less than 200 percent of the minimum daily basic pay authorized for a member of the regular armed forces of the United States in the same grade or rank as the Alaska State Defense Force member at the time of the injury or death.
(i) When active state service is authorized by the governor or by the adjutant general as the governor’s designee, members of the organized militia are entitled to receive, for each day of active service under AS 26.05.070, allowances to the same extent, in the same manner, and under the same conditions as provided for state officials and employees under AS 39.20.110 — 39.20.170. However, pay or allowances are not authorized for training or community service activities of members of the Alaska State Defense Force.
(j) Members of the Alaska State Defense Force are not state employees. However, compensation and benefits under AS 23.30 provided for in (d), (e), and (h) of this section for members of the Alaska State Defense Force are provided as though the member were a state employee. Nothing in this section entitles a member of the Alaska State Defense Force to retirement benefits.
(k) An order into active state service under AS 26.05.070 constitutes an administrative order under AS 39.20.345.
(l) When active state service is authorized by the governor for the purpose of training or full-time duty with the office of the adjutant general, members of the Alaska National Guard and Alaska Naval Militia are entitled to receive, for each day of active state service, the same benefits provided for state employees under AS 39 so long as the member would otherwise qualify for those benefits if the member were a state employee.
(m) In this section,
(1) [Repealed, § 5 ch 84 SLA 2018.]
(2) “wildland fire” includes the uncontrolled burning of grass, brush, timber, and other natural vegetative material.
Sec. 26.05.262. Disposition of remains of members of organized militia.
If a member of the organized militia who is in active state service has executed the United States Department of Defense Military Record of Emergency Data Form (DD Form 93), or its successor form, to serve as a record of emergency data and, on that form, has designated a person who is authorized to direct the disposition of the member’s remains if the member dies while in a duty status as described in 10 U.S.C. 1481, notwithstanding any other provision of law, the person authorized to direct the disposition of remains on the executed form has the right to make the decisions concerning the disposition of the member’s remains.
Sec. 26.05.263. Payment of Servicemembers’ Group Life Insurance premiums; establishment of fund.
(a) The Servicemembers’ Group Life Insurance premium fund is established as a separate fund in the state treasury. The fund consists of appropriations by the legislature to it. Money appropriated to the fund does not lapse. The state shall hold the principal and earnings of the fund for the purpose of reimbursing eligible members of the Alaska National Guard deployed to a combat zone for premiums paid under 38 U.S.C. 1965 — 1980 (Servicemembers’ Group Life Insurance Program).
(b) The adjutant general may make expenditures from the fund to reimburse eligible members of the Alaska National Guard deployed to a combat zone for premiums paid under the program during the period of
(1) deployment if the eligible member applies for reimbursement within two years after returning to the state following deployment;
(2) up to one year of convalescence following the return from deployment; and
(3) with the approval of the adjutant general, up to one year of convalescence in addition to the year under (2) of this subsection.
(c) Subject to appropriation, the fund may be used to pay the expenses incurred by the commissioner of revenue in managing the fund and administrative expenses incurred by the Department of Revenue in administering this section.
(d) Except as provided in (c) of this section, money in the fund is available for expenditure without further appropriation.
(e) Nothing in this section creates a dedicated fund.
(f) The Department of Revenue may adopt regulations necessary to carry out the provisions of this section.
(g) In this section,
(1) “combat zone” means an area of hostile fire or imminent danger that entitles a member on duty in that area to special pay;
(2) “convalescence” means hospital, outpatient, or rehabilitation treatment for an injury suffered while deployed to a combat zone;
(3) “fund” means the Servicemembers’ Group Life Insurance premium fund;
(4) “program” means the Servicemembers’ Group Life Insurance program established by 38 U.S.C. 1965 — 1980.
Sec. 26.05.265. Reenlistment bonus.
(a) Subject to legislative appropriation and (c) of this section, an enlisted member of the Alaska National Guard or the Alaska Naval Militia who extends or reenlists within 30 days after completing a term of service is entitled to a bonus if
(1) the extension or reenlistment is for the maximum authorized term;
(2) at the time of the extension or reenlistment the member has not less than three years of service creditable for retirement purposes; and
(3) on completion of the term for which the member extends or reenlists, the member will have not more than 12 years of service creditable for retirement purposes.
(b) The bonus is $500 for each year of extension or reenlistment, but may not exceed a total of $3,000 for a member’s entire service. The bonus is payable at the satisfactory completion of each year of extension or reenlistment. A pro rata share of the bonus shall be paid to an enlisted member of the Alaska National Guard or Alaska Naval Militia for that portion of a year satisfactorily served before
(1) becoming ineligible because of full-time employment with the National Guard or the Department of Military and Veterans’ Affairs, as described in (c) of this section;
(2) dying or being disabled, if the member’s death or disability was not caused by the member’s own misconduct; or
(3) being discharged from enlisted status to accept a warrant or commission as an officer in the National Guard.
(c) An enlisted member of the Alaska National Guard or Alaska Naval Militia is not eligible for the reenlistment bonus provided in (a) of this section if the enlisted member is a full-time employee of the
(1) National Guard as a technician under 32 U.S.C. 709;
(2) National Guard as an active guard reserve employee under 32 U.S.C. 502(f); or
(3) Department of Military and Veterans’ Affairs whose salary is paid by the state and if the department requires that the employee belong to the Alaska National Guard or the Alaska Naval Militia in order to hold the position.
Sec. 26.05.270. Payment of military claims.
All bills, claims, and demands for military purposes shall be certified and audited as prescribed by law and shall be paid from the state general fund in the normal manner upon submission of vouchers by the adjutant general. If the organized militia, or any part of it, is called into active service of the state in case of war, disaster, insurrection, rebellion, tumult, riot, invasion, breach of peace, or to execute or enforce the law, vouchers for legally allowed pay and expenses for this service or compensation for injuries shall be drawn upon the general fund of the state treasury and paid out of money in that fund not otherwise appropriated.
Sec. 26.05.280. Transportation, subsistence, and supplies.
There shall be provided by the state, transportation and subsistence for all officers and enlisted persons who are ordered into active service by the state for encampment, field duty, or other duty. Necessary transportation, stores, and subsistence for troops when ordered on duty shall be contracted by the proper officers and paid for as other military bills. Contracting under this section is governed by AS 36.30 (State Procurement Code).
Sec. 26.05.290. Further equipment and armories.
The governor may requisition from the Secretary of Defense the arms and equipment that are available for state forces, and make available to state forces the facilities of state armories not required by the federal government and their equipment as may be available.
Sec. 26.05.295. Educational assistance for enlisted personnel.
(a) Each active enlisted member of the Alaska National Guard or the Alaska Naval Militia who has completed the initial voluntary enlistment period of service that fulfills the mandatory requirement for military service under 50 U.S.C. App. 451 — 456, 458 — 471 (Military Selective Service Act of 1967) is eligible for educational assistance benefits in Alaska educational facilities.
(b) Except as provided in this subsection, educational programs and monetary benefits available to persons under (a) of this section are based on and equivalent to those of the United States Department of Veterans Affairs education program. Educational assistance may only be provided for a program or class in which the person is a student in good standing.
(c) [Repealed, § 5 ch 25 SLA 1997.]
(d) [Repealed, § 5 ch 25 SLA 1997.]
Sec. 26.05.296. Tuition assistance.
(a) To the extent funds are available, the adjutant general may authorize the payment of up to 100 percent of the cost of tuition and required fees for each active member of the Alaska National Guard or the Alaska Naval Militia if the member attends an educational, vocational, or technical training school in this state. The adjutant general may prioritize categories of education benefits to encourage recruitment and retention of Alaska National Guard members. Payments authorized under this section for active members of the Alaska National Guard or the Alaska Naval Militia continue so long as the active member is a student in good standing in the educational program or class and participates satisfactorily in unit training activities.
(b) [Repealed, § 5 ch 25 SLA 1997.]
Sec. 26.05.298. Definition for AS 26.05.295 and 26.05.296.
In AS 26.05.295 and 26.05.296, “good standing” means the student is enrolled, attending, and meeting the minimum requirements for successful completion of the program or class.
Secs. 26.05.300 — 26.05.330. Statement of policy on military justice; military courts for the Alaska militia; general court-martial; special court-martial; summary court-martial; appeal from court-martial convictions; expenses of military courts. [For current law see AS 26.05.360 — 26.05.900.]
Sec. 26.05.340. Restrictions on and protection of militia.
(a) In no case may any part of the Alaska National Guard, Alaska Naval Militia, or the Alaska State Defense Force be used against any labor organization or for the purpose of strike breaking within the state.
(b) No part of the state military forces may leave the state with arms and equipment without the consent of the commander in chief.
(c) A person who, either alone or with another, wilfully deprives a member of the National Guard or Naval Militia of employment or prevents the member from being self-employed or employed by another or obstructs or annoys the member or the member’s employer with respect to their trade, business, or employment because the member of the National Guard or Naval Militia is a member, or in any way dissuades any person from enlisting in the National Guard or Naval Militia by threat or injury to the person with respect to the person’s employment, trade or business if the person so enlists, is guilty of a misdemeanor, and upon conviction is punishable by a fine of not more than $100.
(d) All matters relating to the organization, discipline, and government of the National Guard or Naval Militia, not otherwise provided for by the laws of the United States, this chapter, or regulations adopted by the president shall be governed by regulations adopted by the adjutant general and approved by the governor, and the regulations when adopted have the same force and effect as though enacted in this chapter.
Sec. 26.05.342. Alaska Decoration of Honor.
(a) There is created an Alaska Decoration of Honor. The Alaska Decoration of Honor may be awarded to an individual who has been killed in action on or after the date Alaska achieved statehood while
(1) engaged in an action against any enemy of the United States;
(2) engaged in military operations involving conflict with an opposing foreign force;
(3) serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party; or
(4) serving in or deploying to or from a combat zone as designated by presidential order.
(b) To be eligible to receive the Alaska Decoration of Honor, an individual must have been, at the time the individual was killed in action, a member of
(1) the Alaska National Guard who was a legal resident of the state;
(2) the United States military reserves who was a legal resident of the state; or
(3) the regular United States armed forces who was
(A) a legal resident of the state; or
(B) stationed in the state by a proper order of the United States Department of Defense.
(c) The Alaska Decoration of Honor shall be awarded by a concurrent resolution drafted in consultation with the adjutant general’s office. The resolution must be
(1) introduced by the president of the senate, the speaker of the house of representatives, a member of the legislature who is the authorized representative of the president of the senate or the speaker of the house of representatives, or the chair of the committee of each house of the legislature with primary jurisdiction over military and veterans’ affairs; and
(2) adopted by both houses of the legislature.
(d) The Joint Armed Services Committee shall make arrangements for the designing and awarding of the Alaska Decoration of Honor.
(e) The adjutant general shall
(1) annually obtain from the United States government a list of individuals who fulfill the criteria described in (a)(1) — (4) and (b)(1) — (3) of this section during the previous calendar year; and
(2) not later than December 31 each year, provide this list of individuals to the president of the senate and speaker of the house of representatives; the adjutant general may edit the list to remove from it the name of any individual whose service, in the judgment of the adjutant general, would have resulted in the individual’s discharge or release under conditions that were other than honorable.
(f) The adjutant general shall enter the name of each recipient of the Alaska Decoration of Honor on the Alaska Decoration of Honor Roll maintained under AS 26.05.190(e).
Secs. 26.05.345 — 26.05.347. Civil Air Patrol; transfer of forfeited aircraft. [Repealed, E.O. No. 59, § 3 (1985). For current law see AS 18.60.146.]
Sec. 26.05.350. Short title.
Sec. 26.05.360. Regulations; adopting military justice procedures and nonjudicial punishment.
(a) The adjutant general shall adopt regulations consistent with this chapter for members of the militia. The regulations must be approved by the governor.
(b) The regulations adopted under this section must
(1) provide for nonjudicial punishment; the regulations for nonjudicial punishment may not provide for confinement or separation from military service;
(2) as the adjutant general and the governor consider practicable, apply the principles of law and the rules of evidence and procedure governing military criminal cases in the courts of the armed forces of the United States, but may not be contrary to or inconsistent with this chapter or the applicable Alaska Rules of Evidence;
(3) include rules of pretrial, trial, and post-trial procedure, including methods of proof, for cases before courts-martial and courts of inquiry.
(c) The regulations adopted under this section are exempt from AS 44.62 (Administrative Procedure Act).
(d) The legislature may annul regulations adopted under this section by law.
Sec. 26.05.365. Statement of policy on military justice.
Courts-martial have primary jurisdiction over offenses under this chapter, except when an act or omission violates both this chapter and local criminal law, foreign or domestic. In that case, a court-martial may be initiated only after a civilian authority has declined to prosecute or dismissed the charge, provided jeopardy has not attached. Jurisdiction over attempted crimes, conspiracy crimes, solicitation, and accessory crimes must be determined by the underlying offense. These jurisdictional requirements do not apply to nonjudicial punishment or administrative action taken by military authorities.
Sec. 26.05.370. Persons subject to military courts; jurisdiction.
The code of military justice applies to a member of the militia at all times, except when a member of the militia is
(1) in active federal service under 10 U.S.C. (Armed Forces); or
(2) outside the state and not in active duty status.
Sec. 26.05.375. Jurisdiction to try certain personnel.
(a) A person discharged from the militia of the state who is later charged with having fraudulently obtained a discharge is subject to trial by court-martial on that charge and is, after apprehension, subject to the code of military justice while in custody under the direction of the militia of the state for the trial. Upon conviction of the charge, the person is subject to trial by court-martial for an offense under this chapter that is committed before the fraudulent discharge.
(b) A person who has deserted from the militia of the state may not raise a defense that the person is not subject to jurisdiction under the code of military justice by virtue of a separation from a later period of service.
Sec. 26.05.380. Territorial applicability.
(a) The code of military justice applies to a member of the militia accused of or charged with an offense under this chapter that is committed outside the state if the member is in active state service under this chapter and is serving outside the state at the time the offense is committed.
(b) Courts-martial may be convened and held in units of the militia of the state while those units are serving outside the state with the same jurisdiction and powers granted under the code of military justice as if the proceedings were held inside the state. Offenses under this chapter committed by members of the militia outside the state may be tried and punished either inside or outside the state.
Sec. 26.05.385. Judge advocates.
(a) The senior force judge advocate of each force of militia of the state, or the delegate of the senior force judge advocate, shall make frequent inspections in the field in supervision of the administration of military justice in the force.
(b) A convening authority shall communicate directly with the authority’s judge advocates in matters relating to the administration of military justice. The judge advocate of a command is entitled to communicate directly with the judge advocate of a superior or subordinate command or with the state judge advocate.
(c) A person who has acted as member, military judge, trial counsel, defense counsel, or investigating officer, or who has been a witness in a case may not later act as a judge advocate to an authority reviewing the same case.
(d) A person may not serve as a judge advocate under the code of military justice unless the person is a commissioned officer of the organized militia of a state or of an active or reserve component of the armed forces or another uniformed service of the United States, is a member in good standing of the bar of the highest court of a state, and is currently
(1) certified or designated as a judge advocate in the Judge Advocate General’s Corps of the United States Army, Air Force, Navy, or Marine Corps or designated as a law specialist as an officer of the United States Coast Guard, or a reserve component of one of them; or
(2) certified as a nonfederally recognized judge advocate, under the code of military justice, by the senior judge advocate of the commander of the force in the component of the militia of the state of which the accused is a member, as competent to perform the military justice duties required by the code of military justice; if a judge advocate is not available, the certification may be made by the senior judge advocate of the commander of another force in the militia of the state, as the convening authority directs.
Sec. 26.05.390. Apprehension.
(a) A member of the militia or a person authorized under 10 U.S.C. 801 – 946 or the code of military justice to apprehend persons subject to the code of military justice, a marshal of a court-martial, and a peace officer or civil officer having authority to apprehend offenders under the laws of the United States or of a state may apprehend a person subject to the code of military justice upon probable cause that an offense under this chapter has been committed and that the person apprehended committed the offense.
(b) Commissioned officers, warrant officers, petty officers, and noncommissioned officers have authority to suppress disorder or mutual combat among members of the militia and to apprehend a person who participates in the disorder or mutual combat.
(c) If an offender is apprehended outside the state, the offender’s return to the area must be in accordance with applicable extradition procedures, if any, or by reciprocal agreement.
(d) A person authorized by this section to apprehend, restrain, or confine persons subject to the code of military justice may not require payment of a fee for apprehending, restraining, or confining a person except as otherwise provided by law.
Sec. 26.05.395. Imposition of restraint.
(a) An enlisted member of the militia may be arrested or confined by an oral or written order issued by a commissioned officer or another member of the militia of the state acting at the commissioned officer’s direction. A commanding officer may authorize warrant officers, petty officers, or noncommissioned officers to order enlisted members of the commanding officer’s command or subject to the commanding officer’s authority into arrest or confinement.
(b) A commissioned or warrant officer may be arrested or confined only by a commanding officer who has authority over the commissioned or warrant officer. The commanding officer shall deliver the order orally, in writing, in person, or by another member of the militia. A commanding officer may not delegate the authority granted in this subsection.
(c) A person may not be arrested or confined unless the officer issuing the order for arrest or confinement has probable cause to believe that an offense under this chapter has been committed and that the person has committed the offense.
(d) This section does not limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.
Sec. 26.05.400. Restraint of persons charged with offenses.
(a) Except as provided in (b) of this section, a person charged with an offense under this chapter may be arrested or confined as circumstances may require. A person arrested or confined before trial is entitled to prompt notice of the offense of which the person is accused.
(b) A person subject to the code of military justice who is charged with a minor offense normally tried by a summary court-martial or subject to nonjudicial punishment under the code of military justice may not be placed in confinement.
(c) When a person subject to the code of military justice is placed in confinement before summary court-martial or nonjudicial punishment, the person shall be conditionally released pending disposition of the charges.
Sec. 26.05.405. Place of confinement; reports and receiving of prisoners.
(a) A person confined as a prisoner under the code of military justice shall be confined in a civilian or military confinement facility.
(b) Unless otherwise authorized by law, a person authorized to receive a prisoner under (a) of this section may not refuse to receive or keep the prisoner committed to the person’s charge by a commissioned officer of the militia of the state if the officer furnishes the person with a statement signed by the officer identifying the offense for which the prisoner was convicted.
(c) A person authorized to receive a prisoner under (a) of this section shall, within 24 hours after receiving the statement of commitment under (b) of this section, or as soon as the person is relieved from guard, report to the commanding officer of the prisoner the name of the prisoner, the offense for which the prisoner was convicted, and the name of the person who ordered or authorized the commitment.
Sec. 26.05.410. Delivery of offenders to a civil authority.
(a) A person accused of a criminal offense against a civil authority may be delivered, upon request, to a civil authority for trial or confinement.
(b) When a sentence imposed in a court-martial proceeding under the code of military justice is interrupted by the delivery of the offender to a civil authority under this section, and the offender is later convicted and sentenced by the civil authority, competent military authority shall request the civil authority to return the offender to the custody of the military authority for completion of the sentence imposed by court-martial.
(c) The adjutant general, with the approval of the governor, may enter into an agreement with a civil authority to ensure the return of an offender under this section.
Sec. 26.05.415. Courts-martial classified.
The military courts for the militia of the state are
(1) a general court-martial, consisting of
(A) a military judge, not fewer than five members, and not fewer than one alternate member; or
(B) only a military judge, if, before the court is assembled, the accused, knowing the identity of the military judge and after consultation with defense counsel, requests orally on the record or in writing a court composed of only a military judge and the military judge approves;
(2) a special court-martial, consisting of
(A) a military judge, not fewer than three members, and not fewer than one alternate member; or
(B) only a military judge, if one has been detailed to the court, and the accused so requests under the conditions prescribed in (1)(B) of this section; and
(3) a summary court-martial, consisting of one commissioned officer.
Sec. 26.05.420. Jurisdiction of courts-martial in general.
Each force of the militia of the state in active military service has court-martial jurisdiction over all members of the militia. The exercise of jurisdiction by one force over personnel of another force must be in accordance with the code of military justice.
Sec. 26.05.425. Jurisdiction of a general court-martial.
Subject to AS 26.05.420, a general court-martial has jurisdiction to try a member of the militia for an offense under this chapter and may impose a punishment not forbidden by the code of military justice.
Sec. 26.05.430. Jurisdiction of a special court-martial.
Subject to AS 26.05.420, a special court-martial has jurisdiction to try a member of the militia for an offense under this chapter and may impose a punishment not forbidden by the code of military justice, other than dishonorable discharge, dismissal, confinement for more than one year, forfeiture of pay exceeding two-thirds pay a month, or forfeiture of pay for more than one year.
Sec. 26.05.435. Jurisdiction of a summary court-martial.
(a) Subject to AS 26.05.420, a summary court-martial has jurisdiction to try a member of the militia except officers, cadets, candidates, and midshipmen for an offense under this chapter.
(b) A person over whom a summary court-martial has jurisdiction may not be brought to trial before a summary court-martial if the person objects.
(c) If a person accused of an offense under this chapter objects to a summary court-martial under (b) of this section, the person may be ordered tried by special or general court-martial, as appropriate.
(d) A summary court-martial may, under the limitations as the governor may prescribe, impose a punishment not forbidden by the code of military justice, other than dismissal, dishonorable or bad-conduct discharge, confinement for more than one month, restriction to specified limits for more than two months, or forfeiture of more than two-thirds of one month’s pay.
Sec. 26.05.440. Grand jury requirement.
(a) A general court-martial in which the member of the militia is accused of committing an offense that is punishable by confinement of more than one year may not be convened until a grand jury of the state has returned a true bill indicating that there is probable cause to believe that the accused member of the militia committed the offense or offenses at issue.
(b) The general court-martial convening authority shall designate one or more judge advocates to represent the authority at the grand jury, except that, at the request of the adjutant general and with the consent of the attorney general, an attorney from the Department of Law may represent the convening authority at the grand jury.
Sec. 26.05.445. Venue for grand jury and court-martial.
The venue for convening a court-martial, trial, preliminary hearing, and presentation of charges to a state grand jury shall be determined at the discretion of the appropriate court-martial convening authority.
Sec. 26.05.450. Who may convene a general court-martial.
(a) A general court-martial may be convened by
(1) the governor;
(2) the adjutant general;
(3) the commanding officer of a force of the militia of the state;
(4) the commanding officer of a division or a separate brigade;
(5) the commanding officer of a separate wing.
(b) If a commanding officer who is authorized to convene a general court-martial is the accuser in a matter, the court hearing the matter shall be convened by superior competent authority.
(c) A superior authority may convene a case if the superior authority considers it desirable.
Sec. 26.05.455. Who may convene a special court-martial.
(a) A special court-martial may be convened by
(1) a person who may convene a general court-martial;
(2) the commanding officer of a garrison, fort, post, camp, station, Air National Guard base, or naval base or station;
(3) the commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the United States Army;
(4) the commanding officer of a wing, group, separate squadron, or corresponding unit of the United States Air Force; or
(5) a commanding officer or officer in charge of any other command when empowered to do so by the adjutant general.
(b) If an officer who is authorized to convene a special court-martial is the accuser in the matter, the court hearing the matter shall be convened by superior competent authority.
(c) A superior authority may convene a case if the superior authority considers it desirable.
Sec. 26.05.460. Who may convene a summary court-martial.
(a) A summary court-martial may be convened by
(1) a person who may convene a general or special court-martial;
(2) the commanding officer of a detached company or other detachment or the commanding officer of a corresponding unit of the United States Army;
(3) the commanding officer of a detached squadron or other detachment or the commanding officer of a corresponding unit of the United States Air Force; or
(4) the commanding officer or officer in charge of any other command when empowered to do so by the adjutant general.
(b) If only one commissioned officer is present with a command or detachment, that officer shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases. If the officer who is authorized to convene a summary court-martial is the accuser in the matter, the court hearing the matter shall be convened by a superior competent authority, if practicable.
(c) A superior authority may convene a summary court-martial if the superior authority considers it desirable.
Sec. 26.05.465. Who may serve on courts-martial.
(a) A commissioned officer of the militia of a state or of an active duty component of the armed forces of the United States is eligible to serve on a general, special, or summary court-martial for the trial of a member of the militia.
(b) A warrant officer of the militia of a state or of an active duty component of the armed forces of the United States is eligible to serve on a general or special court-martial for the trial of any person, other than a commissioned officer.
(c) An enlisted member of the militia of the state who is not a member of the same unit as the accused is eligible to serve on a general or special court-martial for the trial of an enlisted member, but only if the accused has, before the conclusion of a session of the court-martial called by the military judge, personally requested, orally on the record or in writing, that enlisted members serve on the court-martial.
(d) After a request is made under (c) of this section, the accused may not be tried by a general or special court-martial unless enlisted members make up at least one-third of the total membership of the court. If eligible enlisted members are not available because of physical conditions or military exigencies, the court may proceed to try the accused without enlisted members, but the convening authority shall place on the record a detailed written explanation of why eligible enlisted members were not available.
(e) The accused may not be tried by a court-martial that includes a member who is junior in rank or grade to the accused, unless the inclusion cannot be avoided.
(f) When convening a court-martial, the convening authority shall detail the members of the militia of a state or of an active duty component of the armed forces of the United States who are, in the convening authority’s opinion, the best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. A person is not eligible to serve as a member of a general or special court-martial if the person is the accuser, is a witness, or has acted as investigating officer or as counsel in the same case.
(g) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. The convening authority may delegate the authority under this subsection to a judge advocate or to a principal assistant.
Sec. 26.05.470. Military judge of a general or special court-martial.
(a) A senior force judge advocate who is in the same force as the accused, or a designee, shall detail a military judge to a general and special court-martial. The military judge shall preside over an open session of the court-martial to which the military judge has been detailed.
(b) A military judge must be
(1) an active or retired commissioned officer of the militia of a state or of an active or reserve component of the armed forces or another uniformed service of the United States;
(2) licensed to practice law in a state or a member of the bar of a federal court for at least five years;
(3) certified as qualified for duty as a military judge by a senior force judge advocate who is in the same force as the accused.
(c) The convening authority or a staff member of the convening authority may not prepare or review a report concerning the effectiveness, fitness, or efficiency of the military judge detailed to the case that relates to performance of duty as a military judge.
(d) A person may not act as military judge in a case if that person is the accuser or a witness or has acted as investigating officer or counsel in the same case.
(e) The military judge of a court-martial may not consult with the members of the court except in the presence of the accused, trial counsel, and defense counsel, or vote with the members of the court-martial.
Sec. 26.05.475. Detail of trial counsel and defense counsel.
(a) For each general and special court-martial, the convening authority shall detail trial counsel, defense counsel, and assistants, as appropriate.
(b) A person who has acted as investigating officer, military judge, witness, or court member in a case may not act as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, defense counsel or assistant or associate defense counsel in the case.
(c) A person who has acted for the prosecution may not act in the same case for the defense. A person who has acted for the defense may not act in the same case for the prosecution.
(d) Trial counsel or defense counsel detailed in a general or special court- martial must be
(1) a judge advocate or, if serving as defense counsel, otherwise certified by the senior force judge advocate; and
(2) admitted to the practice of law in this state or otherwise permitted to appear in an action in the courts of this state.
Sec. 26.05.480. Detail or employment of reporters and interpreters.
(a) The convening authority of a general or special court-martial shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court and may detail or employ interpreters to interpret for the court.
(b) A person may not act as a reporter or interpreter under this section in a case if the person is the accuser, a witness, an investigating officer, counsel for a party, or, if the trial is a rehearing, a member of a prior court-martial in the same case.
Sec. 26.05.485. Absent and additional members.
(a) A member of a general or special court-martial may not be absent or excused after the court has been assembled for the trial of the accused unless the member is excused
(1) as a result of a challenge; or
(2) for good cause by the military judge or by order of the convening authority.
(b) If a general court-martial, other than a general court-martial composed of only a military judge, is reduced below five members, the military judge shall assign an available alternate member to the general court-martial to restore the court to five members. The trial may not proceed if a general court-martial, other than a general court-martial composed of only a military judge, is reduced below five members and no alternate is available for assignment.
(c) If a special court-martial, other than a special court-martial composed of only a military judge, is reduced below three members, the military judge shall assign an alternate member to the special court-martial to restore the court to three members. The trial may not proceed if a special court-martial, other than a special court-martial composed of only a military judge, is reduced below three members and no alternate is available for assignment.
(d) If the military judge of a court-martial composed of only a military judge is unable to proceed with a trial because of a challenge or for other good cause, the senior force judge advocate shall detail a new military judge. The trial shall proceed as if no evidence had previously been introduced, unless a verbatim record of the evidence previously introduced or a written stipulation of the evidence is read in court in the presence of the new military judge, the accused, and counsel for both sides.
Sec. 26.05.490. Charges and specifications.
(a) Charges and specifications must be signed by a member of the militia under oath before a commissioned officer authorized by AS 26.05.655 to administer oaths. The charges and specifications must state
(1) that the signer has personal knowledge of, or has investigated, the facts set out in the charges and specifications;
(2) that the charges and specifications are true in fact to the best of the signer’s knowledge and belief.
(b) The person proffering the charges and specifications shall present them to the proper authority. The proper authority receiving the charges and specifications shall immediately determine the disposition of the charges in the interest of justice and discipline, and the person accused shall be informed of the charges as soon as practicable.
Sec. 26.05.495. Compulsory self-incrimination prohibited.
(a) A member of the militia may not compel a person to make a self-incriminating statement or to answer a question if the answer may incriminate the person.
(b) A member of the militia may not interrogate or request a statement from a person suspected of an offense under this chapter without first informing the person of the nature of the accusation and advising the person that the person does not have to make any statement regarding the offense of which the person is accused or suspected and that any statement made by the person may be used as evidence against the person in a trial by court-martial.
(c) A member of the militia may not compel a person to make a statement or produce evidence before a military court if the statement or evidence is not material to the issue before the court and may tend to degrade the person.
(d) A statement obtained from a person in violation of this section or through the use of coercion, unlawful influence, or unlawful inducement may not be admitted into evidence against the person in a trial by court-martial.
Sec. 26.05.500. Investigation; preliminary hearing.
(a) A charge or specification may not be referred to a general court-martial for trial until an investigating officer makes a thorough and impartial investigation of all the matters set out in the charge or specification. The investigating officer shall inquire into the truth of the matters set out in the charges, consider the form of the charges, and recommend a disposition of the case in the interest of justice and discipline.
(b) The accused has the right to be represented by counsel at an investigation. If the accused requests the appointment of military counsel, the investigating officer shall refer the request to the senior force judge advocate, who shall promptly detail defense counsel to represent the accused at the investigation. Defense counsel detailed under this section shall meet the criteria for counsel under AS 26.05.475(d).
(c) In cases where there has been no grand jury proceeding on a charge or no grand jury proceeding is required, the authority investigating the accused shall
(1) advise the accused of the charges against the accused and of the accused’s right to be represented by counsel under (b) of this section;
(2) give the accused the opportunity to cross-examine witnesses against the accused, if the witnesses are available; a victim of an offense under AS 26.05.770 or 26.05.890 — 26.05.900 may not be required to testify at a preliminary hearing; a victim of an offense under AS 26.05.770 or 26.05.890 — 26.05.900 who declines to testify is considered unavailable for the purposes of the preliminary hearing;
(3) give the accused the opportunity to present evidence on the accused’s own behalf, either in defense or mitigation relevant to the limited purposes of the hearing; the investigating officer shall examine available witnesses requested by the accused.
(d) The presentation of evidence and examination of witnesses at a preliminary hearing, including cross-examination, shall be limited to matters relevant to the limited purposes of the hearing.
(e) If, after the investigation, the charges are referred to the court-martial, the investigating officer shall prepare a statement of the charges and the substance of the testimony taken, and a copy shall be given to the accused.
(f) If an investigation of an offense under this chapter is conducted before the accused is charged with the offense and the accused is present at the investigation and provided with counsel and an opportunity to cross-examine witnesses and present evidence under (c) of this section, no further investigation of that charge is necessary under this section unless the accused demands further investigation after the accused is informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer new evidence in the accused’s own behalf.
(g) If evidence adduced in an investigation under this section indicates that the accused committed an uncharged offense, the investigating officer may investigate the subject matter of that offense without the accused’s having first been charged with an offense under this chapter if the accused is
(1) present at the investigation;
(2) informed of the nature of each uncharged offense investigated; and
(3) provided with counsel and an opportunity to cross-examine witnesses and present evidence under (c) of this section.
(h) In this section, “victim” means a person who is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set out in a charge or specification being considered and who is named in a specification being considered.
Sec. 26.05.505. Forwarding of charges.
(a) When a person is held for trial by general court-martial, the commanding officer shall, within eight days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and associated records, to the person exercising general court-martial jurisdiction.
(b) If it is not practicable to forward the charges and investigation and associated records under (a) of this section, the commanding officer shall provide the person with a written explanation for the delay as soon as possible.
Sec. 26.05.510. Advice of judge advocate and reference for trial.
(a) Before directing the trial of a charge by general court-martial, the convening authority shall refer it to a judge advocate for consideration and advice. The convening authority may not refer a specification under a charge to a general court-martial for trial unless the convening authority has been advised in writing by a judge advocate that
(1) the specification alleges an offense under this chapter;
(2) the specification is warranted by the evidence set out in the report of investigation under AS 26.05.500, if there is a report; and
(3) a court-martial has jurisdiction over the accused and the offense.
(b) The advice of the judge advocate under (a) of this section with respect to a specification under a charge shall include a written and signed statement by the judge advocate
(1) stating the judge advocate’s conclusions with respect to each matter set out in (a) of this section; and
(2) recommending to the convening authority what action to take regarding the specification; if the specification is referred for trial, the recommendation of the judge advocate must accompany the specification.
(c) If a charge or specification is not in the correct form or does not conform to the substance of the evidence set out in the investigating officer’s report, the convening authority, with the advice of the judge advocate, may correct the charge or specification to conform to the evidence.
Sec. 26.05.515. Service of charges.
A trial counsel shall serve or cause to be served on the accused a copy of the charges. A person may not, against the person’s objection, be brought to trial before a general court-martial within five days after the service of charges on the person, or before a special court-martial within three days after the service of charges on the person.
Sec. 26.05.520. Unlawfully influencing the action of a court.
(a) An authority convening a general, special, or summary court-martial, a commanding officer, or an officer serving on the staff of a convening authority or commanding officer may not censure, reprimand, or admonish the court, a member of the court, the military judge, or counsel appearing before the court, with respect to the findings of or sentence imposed by the court, or with respect to another exercise of the respective functions of the court, a member of the court, the military judge, or counsel appearing before the court in the conduct of the proceedings.
(b) A member of the militia may not attempt to coerce or, by unauthorized means, influence the action of a court-martial or a member of a court in reaching the findings or sentence in a case, or the action of a convening, approving, or reviewing authority with respect to a judicial act. This subsection does not apply to
(1) general instructional or informational courses in military justice if the courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial; or
(2) statements and instructions given in open court by the military judge, summary court-martial officer, or counsel.
(c) A member of the militia may not, in the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used, in whole or in part, for the purpose of determining whether a member of the militia of the state is qualified to be advanced in grade, in determining the assignment or transfer of a member of the militia of the state, or in determining whether a member of the militia of the state should be retained on active status,
(1) consider or evaluate the performance of duty of the member as a member of a court-martial or witness; or
(2) give a less favorable rating or evaluation of any counsel for the accused because of zealous representation before a court-martial.
(d) In this section, “unauthorized” means contrary to a statute or regulation of the United States or the state.
Sec. 26.05.525. Continuances.
The military judge of a general, special, or summary court-martial may, for reasonable cause, grant a continuance to a party for the time, and as often, as justice requires.
Sec. 26.05.530. Oaths or affirmations.
(a) Before performing their respective duties, military judges, general and special court-martial members, trial counsel, defense counsel, reporters, and interpreters shall take an oath or affirmation in the presence of the accused that they will perform their duties faithfully.
(b) The form of the oath or affirmation, the time and place of taking, the manner of recording, and a determination of whether the oath or affirmation shall be taken for all cases in which the duties are to be performed or for a particular case, shall be prescribed by rules of procedure. The rules may provide that, if a person takes an oath or affirmation with respect to a duty, the person need not take the oath or affirmation again on detailment to the duty.
(c) A witness before a court-martial shall be examined under oath or affirmation.
Sec. 26.05.535. Statute of limitations.
(a) A person charged with an offense under this chapter may not be tried or punished for the offense unless the person received sworn charges and specifications issued by an officer exercising court-martial jurisdiction over the command not later than three years after the commission of the offense or not later than two years after commission of the offense if the imposition of nonjudicial punishment is sought for the offense under the code of military justice.
(b) A period when the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation in this section.
(c) A period when the accused is absent from territory in which the proper authority has the ability to apprehend the accused, in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation in this section.
(d) When the United States is at war declared by the United States Congress or engaged in contingency operations ordered by the President of the United States, and those operations actually prevented the discovery of the offending behavior or the timely bringing of charges, as determined by a military judge at court-martial, the running of a period of limitation for an offense under this chapter is suspended until two years after the termination of hostilities as proclaimed by the President of the United States or by a joint resolution of the United States Congress if the offense
(1) involves fraud or attempted fraud against the United States, a state, or an agency of either, including a conspiracy to commit fraud;
(2) is committed in connection with the acquisition, care, handling, custody, control, or disposition of real or personal property of the United States or a state; or
(3) is committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or other termination or settlement, of a contract, subcontract, or purchase order that is connected with or related to the prosecution of the war, or with the disposition of inventory by a war contractor or government agency.
(e) If charges or specifications are dismissed as defective or insufficient for any cause, and the period prescribed by the applicable statute of limitations has expired or will expire within 180 days after the date of dismissal of the charges and specifications, trial and punishment under new charges and specifications are not barred by the statute of limitations if the new charges and specifications
(1) are received by an officer exercising summary court-martial jurisdiction over the command within 180 days after the dismissal of the charges or specifications;
(2) allege the same acts or omissions that were alleged in the dismissed charges or specifications or acts or omissions that were included in the dismissed charges or specifications.
Sec. 26.05.540. Former jeopardy.
Former jeopardy protections provided to a member of the militia are equivalent to those provided under art. I, sec. 9, Constitution of the State of Alaska, and under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
Sec. 26.05.545. Pleas of the accused.
(a) If, after arraignment, an accused makes an irregular pleading or, after a plea of guilty, initiates an action inconsistent with the plea, or if the accused appears to have entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty.
(b) With respect to a charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn before announcement of the sentence, in which event, the proceedings shall continue as though the accused had pleaded not guilty.
Sec. 26.05.550. Subpoena; process of military courts.
(a) A military judge, the president of a court-martial, or a summary court-martial officer may issue subpoenas and subpoenas duces tecum for the attendance of witnesses and production of books and records, if the courts are sitting within the state and the witnesses, books, and records sought are located in the state. A subpoena may be served by a person designated by the military judge, the president of the court-martial, or summary court-martial officer.
(b) If a person who is not a member of the militia of the state fails to comply with a subpoena issued under this section, the military judge, president of the court-martial, or summary court-martial officer may apply to a state court for an order to compel obedience by proceedings for contempt as if the subpoena had been issued by a court. The military judge, president of the court-martial, or summary court-martial officer may request the attorney general to bring the action.
(c) A person who is not a member of the militia, who has been subpoenaed to appear as a witness or to produce books and records before a court-martial or before a military or civil officer designated to take a deposition to be read in evidence before a court-martial, who has been paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending a criminal court of the state, and who wilfully neglects or refuses to appear or refuses to qualify as a witness or to testify or to produce evidence that the person may have been legally subpoenaed to produce is guilty of a violation and may be charged and punished as provided in AS 12.55.
Sec. 26.05.555. Contempt.
(a) A military judge or summary court-martial officer may punish for contempt a person who
(1) uses a menacing word, sign, or gesture in its presence;
(2) disturbs its proceedings by any riot or disorder; or
(3) wilfully disobeys a lawful writ, process, order, rule, decree, or command of the military judge or summary court-martial officer.
(b) A military judge or summary court-martial officer may punish a member of the militia for contempt as provided in AS 09.50.020 for civil contempt.
(c) A military judge or summary court-martial officer may punish a person who is not a member of the militia for direct contempt as provided in AS 09.50.020 for civil contempt.
Sec. 26.05.560. Defense of insanity.
(a) The accused may assert the affirmative defense of insanity as provided in AS 12.47.010. If the accused gives notice of the defense, the accused shall file with the military judge the notice required by AS 12.47.090.
(b) If the accused asserts the defense of insanity under (a) of this section, the court shall order an examination to be conducted that meets the standards of AS 12.47.070.
(c) If the defense of insanity is properly at issue, the military judge shall instruct the members of the court as to the defense and charge them to find the accused
(1) guilty;
(2) not guilty; or
(3) not guilty by reason of insanity.
(d) The accused may be found not guilty by reason of insanity if
(1) a majority of the members of the court-martial present at the time the vote is taken determine that the defense of insanity has been established; or
(2) in the case of a court-martial composed of a military judge or a summary court-martial officer sitting without court members, the military judge or summary court-martial officer determines that the defense of insanity has been established.
(e) In the case of a court-martial composed of a military judge or a summary court-martial officer sitting without court members, if the defense of insanity is properly at issue, the military judge or summary court-martial officer shall find the accused
(1) guilty;
(2) not guilty; or
(3) not guilty by reason of insanity.
(f) If an accused is found not guilty by reason of insanity, trial counsel shall, within 24 hours, file a petition under AS 47.30.700 for a screening investigation to determine the need for treatment if trial counsel has good cause to believe that the defendant is suffering from a mental illness and, as a result, is gravely disabled or likely to cause serious harm to self or others. In this subsection, “mental illness” has the meaning given in AS 47.30.915.
Sec. 26.05.565. Lack of mental capacity or mental responsibility; commitment of accused for examination and treatment.
(a) An accused who, as a result of a mental disease or defect that renders the accused incompetent to the extent that the accused is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of the case, may not be tried, convicted, or sentenced for an offense under this chapter as long as the incompetency exists.
(b) If trial counsel or defense counsel has reason to believe that the accused is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of the case, counsel may file a motion with the military judge assigned to the case for a determination of the competency of the accused. Upon the motion, or on the judge’s own motion, the court shall order an examination to be conducted and make a determination in accordance with the requirements of AS 12.47.100. If the military judge determines that the accused must be committed for the purpose of examination, and the accused is not otherwise subject to commitment under AS 47.30.700 – 47.30.915, the military judge shall order the convening authority to seek the assistance of the attorney general in seeking a commitment under AS 12.47.100.
(c) If the military court determines that the accused is incompetent to stand trial and the accused is not otherwise subject to commitment under AS 47.30.700 – 47.30.915, the military judge shall order the convening authority to seek the assistance of the attorney general in seeking a commitment under AS 12.47.110.
(d) If, at the end of a period of commitment under (b) and (c) of this section, it is determined that the accused’s mental condition has not improved so as to permit the trial to proceed, the charges shall be dismissed without prejudice, and continued commitment proceedings shall be governed by the provisions relating to civil commitment under AS 47.30.700 – 47.30.915. If the accused remains incompetent for five years after the charges have been dismissed under this subsection, the accused may not be charged again for an offense under this chapter arising out of the facts alleged in the original charges.
(e) When the custodian of an accused person hospitalized under (c) of this section determines that the person has recovered to the extent that the accused is able to understand the nature of the proceedings against the accused and to conduct or cooperate intelligently in the defense of the case, the custodian shall promptly transmit a notification of the determination to the general court-martial convening authority for the accused and trial and defense counsel.
(f) Upon receipt of the notice, the convening authority shall promptly take custody of the accused unless the accused is no longer a member of the militia.
(g) If the accused remains a member of the militia, the military judge detailed to the case shall conduct the hearing required under AS 12.47.120. If the judge finds the accused competent, the court-martial shall be assembled.
(h) The custodian of the accused person may retain custody of the person for not more than 30 days after transmitting the notifications required under (e) of this section.
(i) If, during a period of commitment under this section, the accused is no longer a member of the militia, the convening authority shall promptly notify the custodian and the attorney general; the custodian and the attorney general may take further action that is legally permissible.
Sec. 26.05.570. Voting and rulings.
(a) Voting by members of a general or special court-martial on the findings and on the sentence shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall immediately announce the result of the ballot to the members of the court on the record, in an open court, and in the presence of all parties to the trial.
(b) The military judge shall rule on all questions of law and all interlocutory questions arising during the proceedings. A ruling made by the military judge on a question of law or an interlocutory question, other than the factual issue of mental responsibility of the accused, is final and constitutes the ruling of the court. However, the military judge may change the ruling at any time during the trial before a vote is taken on the findings. Unless the ruling is final, if a member objects to a ruling, the court shall be cleared and closed, and the question shall be decided by a voice vote as provided in AS 26.05.575, beginning with the junior in rank.
(c) Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense under this chapter and charge them that
(1) the accused is presumed to be innocent until the guilt of the accused is established by legal and competent evidence beyond a reasonable doubt;
(2) if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused, and the accused must be acquitted;
(3) if there is a reasonable doubt as to the degree of guilt, a finding of guilt must be in a lower degree as to which there is no reasonable doubt; and
(4) the burden of proof to establish the guilt of the accused beyond a reasonable doubt is on the state.
(d) A military judge sitting without court members shall
(1) determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence;
(2) make a general finding and shall, in addition, on request, find the facts specially.
(e) If a military judge sitting without court members files an opinion or memorandum of decision, the opinion or memorandum of decision is sufficient if the findings of fact appear in the opinion or memorandum of decision.
Sec. 26.05.575. Number of votes required.
(a) A person may not be convicted of an offense under this chapter that is tried by a court-martial unless by the unanimous verdict of the members of the court present at the time the vote is taken.
(b) All other questions to be decided by the members of a general or special court-martial shall be determined by a majority vote, but a determination to reconsider a finding of guilty or to reconsider a sentence, with a view toward decreasing it, may be made by any lesser vote that indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence. A tie vote on a challenge disqualifies the member challenged. A tie vote on any other question is a determination in favor of the accused.
Sec. 26.05.580. Record of trial.
(a) Each general and special court-martial shall keep a separate record of the proceedings in each case brought before it, and the record must be authenticated by the signature of the military judge. If the military judge cannot authenticate the record because of the military judge’s death, disability, or absence, the record shall be authenticated by the signature of the trial counsel or, if the trial counsel is unable to authenticate the record because of the trial counsel’s death, disability, or absence, then by the signature of a member of the court. In a court-martial consisting of only a military judge, the record shall be authenticated by the court reporter under the same conditions that would impose a duty on a member under this subsection.
(b) In each general and special court-martial case resulting in a conviction, a complete verbatim record of the proceedings and testimony shall be prepared. In all other court-martial cases, the record must contain the matters as may be prescribed by rules of procedure.
(c) Each summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be authenticated in the manner as may be prescribed by rules of procedure.
(d) A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as the record is authenticated.
Sec. 26.05.585. Cruel and unusual punishments prohibited.
A court-martial may not impose on a member of the militia punishment by flogging, branding, marking, or tattooing on the body, or another cruel or unusual punishment. The use of irons, single or double, except for the purpose of safe custody, is prohibited.
Sec. 26.05.590. Punishments; maximum limits.
(a) A court-martial may not impose a punishment that exceeds the limits set out in the code of military justice and may not impose a sentence of death. A sentence of confinement imposed under this chapter may not exceed 10 years. An offense under this chapter that is punishable by a term of confinement of more than one year is a felony offense. Except for convictions by a summary court-martial and except as otherwise specifically provided in the code of military justice, all other offenses under this chapter are misdemeanors. A conviction by a summary court-martial is a violation.
(b) A nonjudicial punishment may not include a sentence of confinement or separation from military service.
Sec. 26.05.595. Deferment of sentences.
(a) If an accused is under sentence to confinement that has not yet been ordered executed, the convening authority or, if the accused is no longer under the convening authority’s jurisdiction, the person exercising general court-martial jurisdiction over the command to which the accused is currently detailed may, in that person’s sole discretion, defer service of the sentence to confinement. The deferment terminates when the sentence is ordered to be executed. The deferment may be rescinded at any time by the authority who granted it or, if the accused is no longer under that person’s jurisdiction, by the person exercising general court-martial jurisdiction over the command to which the accused is currently detailed.
(b) If a court-martial sentences an accused to confinement, the convening authority may, without the consent of the accused, defer the service of the sentence until after the accused has been permanently released to the militia of the state by a state, the United States, or a foreign country
(1) that had custody of the accused;
(2) that temporarily returned the accused to the militia of the state for trial by court-martial; and
(3) to which, after the court-martial, the militia of the state returned the accused under the authority of a mutual agreement or treaty.
(c) In a case in which a court-martial sentences an accused to confinement and the sentence to confinement has been ordered executed, but in which review of the case under AS 26.05.615, 26.05.640, or 26.05.645 is pending, the adjutant general may defer further service of the sentence to confinement while that review is pending.
(d) In (b) of this section, “state” includes the District of Columbia and any commonwealth, territory, or possession of the United States.
Sec. 26.05.600. Execution of confinement.
A person must serve a sentence of confinement imposed by a court-martial, whether or not the sentence includes discharge or dismissal from the militia of the state, and whether or not the discharge or dismissal has been executed. The sentence may be carried into execution by confinement in a place authorized by the code of military justice. A person confined under the code of military justice is subject to the same discipline and treatment as other persons confined or committed to the place of confinement.
Sec. 26.05.605. Error of law; lesser included offense.
(a) A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.
(b) A reviewing authority authorized under the code of military justice to approve or affirm a finding of guilt may approve or affirm, instead, so much of the finding as includes a lesser included offense under this chapter.
Sec. 26.05.610. Withdrawal of appeal.
In a case subject to appellate review under the code of military justice, the accused may, at any time, file with the convening authority a written statement expressly withdrawing the right of the accused to the appeal. The withdrawal shall be signed by both the accused and the accused’s defense counsel and filed in accordance with rules of procedure.
Sec. 26.05.615. Appeal by the state.
(a) In a trial by court-martial in which a punitive discharge may be imposed, the state may appeal to the Military Appeals Commission established under this chapter
(1) an order or ruling of the military judge that terminates the proceedings with respect to a charge or specification;
(2) an order or ruling that excludes evidence that is substantial proof of a fact material in the proceeding;
(3) an order or ruling that directs the disclosure of classified information;
(4) an order or ruling that imposes sanctions for nondisclosure of classified information;
(5) the refusal of the military judge to issue a protective order sought by the prosecution to prevent the disclosure of classified information;
(6) the refusal of the military judge to enforce an order issued under (5) of this subsection that was previously issued by an appropriate authority.
(b) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours after the order or ruling. The notice must include a certification by the trial counsel that the appeal is not taken for the purpose of delay and, if the order or ruling appealed is one that excludes evidence, that the evidence excluded is substantial proof of a fact material in the proceeding.
(c) An appeal under this section shall be forwarded to the Military Appeals Commission under AS 26.05.640. In ruling on the appeal, the Military Appeals Commission may act only with respect to matters of law.
(d) A period of delay resulting from an appeal under this section shall be excluded in deciding an issue involving the denial of a speedy trial, unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was frivolous and without merit.
(e) The state may not appeal a finding of not guilty with respect to a charge or specification by the members of the court-martial, or by a judge in a bench trial if the finding was not made on reconsideration.
Sec. 26.05.620. Vacation of suspension.
(a) A probationer serving a period of probation under a sentence suspended by a special court-martial that, as approved, includes a bad-conduct discharge, or a suspended general court-martial sentence, is entitled to a hearing before the suspension is vacated. The probationer shall be represented at the hearing by military counsel if the probationer requests representation.
(b) If the suspended sentence was imposed by a special court-martial, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged violation of probation. The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If the officer vacates the suspension, the unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in the code of military justice.
(c) The suspension of another sentence may be vacated by an authority for the command in which the accused is serving or detailed who is competent to convene a court of the kind that imposed the sentence.
Sec. 26.05.625. Petition for a new trial.
At any time within two years after approval by the convening authority of a court-martial sentence, the accused may petition the adjutant general for a new trial on the grounds of newly discovered evidence or fraud on the court-martial.
Sec. 26.05.630. Restoration.
(a) All rights, privileges, and property affected by an executed part of a court-martial sentence that has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and the executed part is included in a sentence imposed on the new trial or rehearing.
(b) If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the governor may substitute an administrative form of discharge unless the accused is to serve out the remainder of the accused’s enlistment.
(c) If a previously executed sentence of dismissal is not imposed on a new trial, the governor may substitute an administrative form of discharge, and a commissioned officer dismissed under the original sentence may be reappointed by the governor alone to the commissioned grade and rank that, in the opinion of the governor, the former officer would have attained had the officer not been dismissed. The reappointment of the former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only to the extent the governor may direct. The time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.
Sec. 26.05.635. Leave required to be taken pending review of court-martial convictions.
In accordance with rules adopted under AS 26.05.360, an accused who has been sentenced by a court-martial may be required to take leave pending completion of action under this chapter if the sentence includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The accused may be required to begin the leave on the date on which the sentence is approved under the code of military justice, or at any time after that date, and the leave may be continued until the date on which action under this chapter is completed, or may be terminated at an earlier time.
Sec. 26.05.640. Military Appeals Commission.
(a) The Military Appeals Commission is established in the Department of Military and Veterans’ Affairs. The commission is a quasi-judicial agency.
(b) The commission has
(1) jurisdiction to hear appeals from courts-martial by the
(A) state in accordance with AS 26.05.615; and
(B) accused regarding sentences, punishments, clearly erroneous findings, and matters of law; and
(2) the discretion to remand those cases to a competent court-martial.
(c) The commission consists of three members appointed by the governor and confirmed by a majority of the members of the legislature in joint session. A member shall be a resident of this state and
(1) be licensed to practice law
(A) in this state and be a member in good standing of the Alaska Bar Association;
(B) in another state and be a member in good standing of the bar of that state; or
(C) as a member of the bar of a federal court;
(2) have engaged in the active practice of law for at least five years;
(3) be a former commissioned officer in the armed forces of the United States or the reserve components, or in the militia of a state; and
(4) have at least five years’ experience as an officer in the judge advocate general’s corps of the armed forces of the United States or the militia of the state.
(d) Except as provided in AS 39.05.080(4), an appointee selected to fill a vacancy shall hold office for the unexpired term of the member whose vacancy is filled. A vacancy in the commission does not impair the authority of a quorum of members to exercise the powers and perform the duties of the commission.
(e) A member may be reappointed if the reappointment complies with this section.
(f) The members of the commission shall select a chair from among the members of the commission. The selection shall be subject to the approval of the adjutant general.
(g) The governor may remove a commissioner from office for cause including incompetence, neglect of duty, or misconduct in office. A commissioner, to be removed for cause, shall be given a copy of the charges and offered an opportunity to be publicly heard in person or by counsel in the commissioner’s own defense upon not less than 10 days’ notice. If a commissioner is removed for cause, the governor shall file with the lieutenant governor a complete statement of all charges made against the commissioner and the governor’s finding based on the charges, together with a complete record of the proceedings.
(h) The adjutant general shall adopt regulations to govern appellate procedure before the Military Appeals Commission. The regulations shall be substantially similar to the provisions for post-trial procedure and review of courts-martial under 10 U.S.C. 801 – 946. The regulations must be approved by the governor. Regulations adopted under this section are exempt from AS 44.62 (Administrative Procedure Act).
(i) The governor may appoint an alternate member, who will serve temporarily in cases where a Military Appeals Commission member is removed or otherwise unavailable to perform the duties of a commission member. The alternate member must be confirmed by a majority of the members of the legislature in joint session and otherwise meet the qualifications specified in (c) of this section.
Sec. 26.05.645. Review by civilian court.
(a) After exhausting all remedies available under the code of military justice, a party may file a petition for review in the Alaska supreme court from a final decision of the Military Appeals Commission that upholds a conviction and sentence imposed by a general or special court-martial for an offense under this chapter if the sentence
(1) includes confinement imposed under the code of military justice; and
(2) meets the criteria for appeal under AS 12.55.120.
(b) A decision by the Alaska supreme court on a matter reviewed under a petition filed under (a) of this section is final and binding on all parties, the Military Appeals Commission, and the court-martial.
(c) A party filing a petition for review under this section shall comply with the rules of court applicable to petitions for review in the appellate courts, including the deadlines for filing.
Sec. 26.05.650. Appellate and civilian counsel.
(a) If the attorney general requests representation, the senior force judge advocate shall detail a judge advocate as appellate counsel to represent the state in a proceeding filed under AS 26.05.640 as civilian counsel, in a petition filed under AS 26.05.645, or as counsel before any federal court.
(b) The accused has the right to be represented by detailed military counsel before the Military Appeals Commission under AS 26.05.640 and before the reviewing court in a petition filed under AS 26.05.645.
(c) Upon the request of an accused entitled to be represented under (b) of this section, the senior force judge advocate shall detail a judge advocate to represent the accused in a review or appeal. Counsel detailed under this subsection shall meet the criteria for counsel under AS 26.05.475(d).
(d) A person who has acted as investigating officer, trial counsel, military judge, witness, or court member in the case may not act as civilian review counsel for the accused detailed under (c) of this section.
(e) An accused may choose to be represented by civilian counsel at the expense of the accused.
Sec. 26.05.655. Authority to administer oaths and act as notary public.
(a) The following persons may administer oaths for the purposes of military administration, including military justice:
(1) a judge advocate;
(2) a summary court-martial;
(3) the adjutant general and assistant adjutant generals;
(4) a commanding officer of the militia;
(5) a person authorized by federal or state statute or regulation or by regulations of the armed forces of the United States or the state to administer oaths or act as a notary public.
(b) The following persons may administer oaths necessary in the performance of their duties:
(1) the president, military judge, and trial counsel for general and special courts-martial;
(2) an officer designated to take a deposition;
(3) a person detailed to conduct an investigation;
(4) a recruiting officer;
(5) a person authorized by federal or state statute or regulation or by regulations of the armed forces of the United States to administer oaths or act as a notary public.
(c) The person’s signature without seal, together with the title of the person’s office, is prima facie evidence of the person’s authority to administer oaths and act as a notary public under this section.
Sec. 26.05.660. Delegation by the governor.
The governor may delegate any authority vested in the governor under the code of military justice, and provide for the subdelegation of the authority, except the powers given to the governor by AS 26.05.170 and 26.05.450.
Sec. 26.05.665. Military justice account.
(a) The military justice account is established in the general fund for the purpose of paying the expenses of the department in carrying out its duties relating to the code of military justice, including the fees and authorized travel expenses of witnesses, experts, victims, court reporters, and interpreters, fees for the service of process, costs of collection, apprehension, detention, and confinement, pay and allowances for court-martial duty, and all other necessary expenses of the prosecution and administration of military justice not otherwise payable by another source.
(b) The account consists of money appropriated to it by the legislature and interest received on money in the account.
(c) The department may use money appropriated to the account to pay for expenses related to the duties described in (a) of this section.
(d) Money appropriated to the account does not lapse.
(e) Nothing in this section creates a dedicated fund.
(f) In this section, “account” means the military justice account established under (a) of this section.
Sec. 26.05.670. Payment, collection, and deposit of fines.
(a) A fine imposed by a military court or through the imposition of nonjudicial punishment may be paid to the state and delivered to the court or imposing officer, or to a person executing process.
(b) If the person on whom the fine was imposed fails to pay, the department may collect the fine by
(1) retaining pay or allowances due or to become due to the person fined from the militia of the state or the United States;
(2) garnishment or levy, together with costs, on the wages, goods, and property of a person delinquent in paying a fine in accordance with AS 09.38.
(c) A fine or penalty required to be paid under this section shall be deposited into the general fund and accounted for under AS 37.05.142.
Sec. 26.05.675. Pay and allowances for court-martial duty.
For each day of duty as a member of a general court-martial, or as a witness under summons from the president or judge advocate of the court, officers and enlisted persons shall be paid as provided in AS 26.05.260(b).
Sec. 26.05.680. Uniformity of interpretation.
The code of military justice shall be construed to carry out its general purpose and, so far as practicable, in a manner uniform with 10 U.S.C. 801 – 946.
Sec. 26.05.685. Immunity for action of military courts.
A person acting under the code of military justice, whether as a member of the militia or as a civilian, shall be immune from any personal liability for any of the acts or omissions that the person did or failed to do as part of the person’s duties under the code of military justice.
Sec. 26.05.690. Principals.
A member of the militia who commits an offense under this chapter, or aids, abets, counsels, commands, solicits, or procures the commission of the offense, or causes an act to be done that, if directly performed by the member, would be punishable under this chapter, is a principal.
Sec. 26.05.695. Accessory after the fact.
A member of the militia who, knowing that an offense under this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent the offender’s apprehension, trial, or punishment may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.697. Misprision of serious offense.
A member of the militia who (1) knows that another person has committed a serious offense, (2) wrongfully conceals the commission of the offense, and (3) fails to make the commission of the offense known to a civilian or military authority as soon as possible may be punished by up to three years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.700. Conviction of lesser included offense.
An accused may be found guilty of an offense necessarily included in the offense charged, of an attempt to commit either the offense under this chapter charged or an offense necessarily included in the offense charged, or of an offense designated by the President of the United States, in the most recent Manual for Courts-Martial, United States, as a presidentially prescribed lesser included offense under 10 U.S.C. 879.
Sec. 26.05.705. Attempts.
(a) An act done with specific intent to commit an offense under this chapter that amounts to more than mere preparation and tends, even though failing, to effect its commission, is an attempt to commit the offense.
(b) A member of the militia who attempts to commit an offense under this chapter may be punished as a court-martial may direct, unless otherwise specifically prescribed. However, a court-martial may not direct a punishment for an attempt to commit an offense that is greater than the maximum punishment for the offense.
(c) A member of the militia may be convicted of an attempt to commit an offense under this chapter even if it appears, at the trial, that the offense was consummated.
Sec. 26.05.710. Conspiracy.
A member of the militia who conspires with another person to commit an offense under this chapter may, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct, unless otherwise specifically prescribed. However, a court-martial may not direct a punishment for conspiracy to commit an offense that is greater than the maximum punishment for the offense.
Sec. 26.05.715. Solicitation.
(a) A member of the militia who solicits or advises another or others to desert in violation of AS 26.05.730 or to mutiny in violation of AS 26.05.775 may, if the offense solicited or advised is attempted or committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not attempted or committed, the member may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who solicits or advises another or others to commit an act of misbehavior before the enemy in violation of AS 26.05.800 or an act of sedition in violation of AS 26.05.775 may, if the offense solicited or advised is committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed, the member may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who solicits or advises another person to commit an offense under this chapter, other than an offense specified in (a) or (b) of this section, may be punished by confinement for up to the maximum punishment of the underlying offense, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.720. Fraudulent enlistment, appointment, or separation.
A person who procures the person’s own enlistment or appointment in the militia of the state by knowingly false representation or deliberate concealment as to the person’s qualifications for the enlistment or appointment and receives pay or allowances under the enlistment or appointment, or procures the person’s own separation from the militia of the state by knowingly false representation or deliberate concealment as to the person’s eligibility for that separation, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.725. Unlawful enlistment, appointment, or separation.
A member of the militia who effects an enlistment or appointment in or a separation from the militia of the state of a person who is known to the member to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.730. Desertion.
(a) A person is guilty of desertion if the person is a member of the militia and
(1) without authority, goes or remains absent from the person’s unit, organization, or place of duty with intent to remain away from the unit, organization, or place of duty permanently;
(2) quits the person’s unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
(3) without being regularly separated from one force of the militia of the state,
(A) enlists or accepts an appointment in the same or another force of the militia of the state, the military forces of another state, or one of the armed forces of the United States, without fully disclosing the fact that the person has not been regularly separated; or
(B) enters a foreign armed service except when authorized by the United States.
(b) A commissioned officer of the militia commits the offense of desertion if, after tender of the officer’s resignation and before notice of its acceptance, the officer quits the officer’s post or proper duties without leave and with intent to remain away permanently.
(c) A person found guilty of desertion or attempt to desert may be punished, if the offense is committed in time of war, or emergency as described in AS 26.05.070,
(1) by confinement of not more than 10 years, by separation with a characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the offense is committed in time of war;
(2) by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the desertion or attempt to desert occurs at a time other than a time of war.
Sec. 26.05.735. Absence without leave.
A member of the militia who, without authority, (1) fails to go to the member’s appointed place of duty at the time prescribed, (2) goes from the member’s place of duty, or (3) is absent or remains absent from the member’s unit, organization, or place of duty at which the member is required to be at the time prescribed may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(a) A person accused of a criminal offense against a civil authority may be delivered, upon request, to a civil authority for trial or confinement.
(b) When a sentence imposed in a court-martial proceeding under the code of military justice is interrupted by the delivery of the offender to a civil authority under this section, and the offender is later convicted and sentenced by the civil authority, competent military authority shall request the civil authority to return the offender to the custody of the military authority for completion of the sentence imposed by court-martial.
(c) The adjutant general, with the approval of the governor, may enter into an agreement with a civil authority to ensure the return of an offender under this section.
Sec. 26.05.415. Courts-martial classified.
The military courts for the militia of the state are
(1) a general court-martial, consisting of
(A) a military judge, not fewer than five members, and not fewer than one alternate member; or
(B) only a military judge, if, before the court is assembled, the accused, knowing the identity of the military judge and after consultation with defense counsel, requests orally on the record or in writing a court composed of only a military judge and the military judge approves;
(2) a special court-martial, consisting of
(A) a military judge, not fewer than three members, and not fewer than one alternate member; or
(B) only a military judge, if one has been detailed to the court, and the accused so requests under the conditions prescribed in (1)(B) of this section; and
(3) a summary court-martial, consisting of one commissioned officer.
Sec. 26.05.420. Jurisdiction of courts-martial in general.
Each force of the militia of the state in active military service has court-martial jurisdiction over all members of the militia. The exercise of jurisdiction by one force over personnel of another force must be in accordance with the code of military justice.
Sec. 26.05.425. Jurisdiction of a general court-martial.
Subject to AS 26.05.420, a general court-martial has jurisdiction to try a member of the militia for an offense under this chapter and may impose a punishment not forbidden by the code of military justice.
Sec. 26.05.430. Jurisdiction of a special court-martial.
Subject to AS 26.05.420, a special court-martial has jurisdiction to try a member of the militia for an offense under this chapter and may impose a punishment not forbidden by the code of military justice, other than dishonorable discharge, dismissal, confinement for more than one year, forfeiture of pay exceeding two-thirds pay a month, or forfeiture of pay for more than one year.
Sec. 26.05.435. Jurisdiction of a summary court-martial.
(a) Subject to AS 26.05.420, a summary court-martial has jurisdiction to try a member of the militia except officers, cadets, candidates, and midshipmen for an offense under this chapter.
(b) A person over whom a summary court-martial has jurisdiction may not be brought to trial before a summary court-martial if the person objects.
(c) If a person accused of an offense under this chapter objects to a summary court-martial under (b) of this section, the person may be ordered tried by special or general court-martial, as appropriate.
(d) A summary court-martial may, under the limitations as the governor may prescribe, impose a punishment not forbidden by the code of military justice, other than dismissal, dishonorable or bad-conduct discharge, confinement for more than one month, restriction to specified limits for more than two months, or forfeiture of more than two-thirds of one month’s pay.
Sec. 26.05.440. Grand jury requirement.
(a) A general court-martial in which the member of the militia is accused of committing an offense that is punishable by confinement of more than one year may not be convened until a grand jury of the state has returned a true bill indicating that there is probable cause to believe that the accused member of the militia committed the offense or offenses at issue.
(b) The general court-martial convening authority shall designate one or more judge advocates to represent the authority at the grand jury, except that, at the request of the adjutant general and with the consent of the attorney general, an attorney from the Department of Law may represent the convening authority at the grand jury.
Sec. 26.05.445. Venue for grand jury and court-martial.
The venue for convening a court-martial, trial, preliminary hearing, and presentation of charges to a state grand jury shall be determined at the discretion of the appropriate court-martial convening authority.
Sec. 26.05.450. Who may convene a general court-martial.
(a) A general court-martial may be convened by
(1) the governor;
(2) the adjutant general;
(3) the commanding officer of a force of the militia of the state;
(4) the commanding officer of a division or a separate brigade;
(5) the commanding officer of a separate wing.
(b) If a commanding officer who is authorized to convene a general court-martial is the accuser in a matter, the court hearing the matter shall be convened by superior competent authority.
(c) A superior authority may convene a case if the superior authority considers it desirable.
Sec. 26.05.455. Who may convene a special court-martial.
(a) A special court-martial may be convened by
(1) a person who may convene a general court-martial;
(2) the commanding officer of a garrison, fort, post, camp, station, Air National Guard base, or naval base or station;
(3) the commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the United States Army;
(4) the commanding officer of a wing, group, separate squadron, or corresponding unit of the United States Air Force; or
(5) a commanding officer or officer in charge of any other command when empowered to do so by the adjutant general.
(b) If an officer who is authorized to convene a special court-martial is the accuser in the matter, the court hearing the matter shall be convened by superior competent authority.
(c) A superior authority may convene a case if the superior authority considers it desirable.
Sec. 26.05.460. Who may convene a summary court-martial.
(a) A summary court-martial may be convened by
(1) a person who may convene a general or special court-martial;
(2) the commanding officer of a detached company or other detachment or the commanding officer of a corresponding unit of the United States Army;
(3) the commanding officer of a detached squadron or other detachment or the commanding officer of a corresponding unit of the United States Air Force; or
(4) the commanding officer or officer in charge of any other command when empowered to do so by the adjutant general.
(b) If only one commissioned officer is present with a command or detachment, that officer shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases. If the officer who is authorized to convene a summary court-martial is the accuser in the matter, the court hearing the matter shall be convened by a superior competent authority, if practicable.
(c) A superior authority may convene a summary court-martial if the superior authority considers it desirable.
Sec. 26.05.465. Who may serve on courts-martial.
(a) A commissioned officer of the militia of a state or of an active duty component of the armed forces of the United States is eligible to serve on a general, special, or summary court-martial for the trial of a member of the militia.
(b) A warrant officer of the militia of a state or of an active duty component of the armed forces of the United States is eligible to serve on a general or special court-martial for the trial of any person, other than a commissioned officer.
(c) An enlisted member of the militia of the state who is not a member of the same unit as the accused is eligible to serve on a general or special court-martial for the trial of an enlisted member, but only if the accused has, before the conclusion of a session of the court-martial called by the military judge, personally requested, orally on the record or in writing, that enlisted members serve on the court-martial.
(d) After a request is made under (c) of this section, the accused may not be tried by a general or special court-martial unless enlisted members make up at least one-third of the total membership of the court. If eligible enlisted members are not available because of physical conditions or military exigencies, the court may proceed to try the accused without enlisted members, but the convening authority shall place on the record a detailed written explanation of why eligible enlisted members were not available.
(e) The accused may not be tried by a court-martial that includes a member who is junior in rank or grade to the accused, unless the inclusion cannot be avoided.
(f) When convening a court-martial, the convening authority shall detail the members of the militia of a state or of an active duty component of the armed forces of the United States who are, in the convening authority’s opinion, the best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. A person is not eligible to serve as a member of a general or special court-martial if the person is the accuser, is a witness, or has acted as investigating officer or as counsel in the same case.
(g) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. The convening authority may delegate the authority under this subsection to a judge advocate or to a principal assistant.
Sec. 26.05.470. Military judge of a general or special court-martial.
(a) A senior force judge advocate who is in the same force as the accused, or a designee, shall detail a military judge to a general and special court-martial. The military judge shall preside over an open session of the court-martial to which the military judge has been detailed.
(b) A military judge must be
(1) an active or retired commissioned officer of the militia of a state or of an active or reserve component of the armed forces or another uniformed service of the United States;
(2) licensed to practice law in a state or a member of the bar of a federal court for at least five years;
(3) certified as qualified for duty as a military judge by a senior force judge advocate who is in the same force as the accused.
(c) The convening authority or a staff member of the convening authority may not prepare or review a report concerning the effectiveness, fitness, or efficiency of the military judge detailed to the case that relates to performance of duty as a military judge.
(d) A person may not act as military judge in a case if that person is the accuser or a witness or has acted as investigating officer or counsel in the same case.
(e) The military judge of a court-martial may not consult with the members of the court except in the presence of the accused, trial counsel, and defense counsel, or vote with the members of the court-martial.
Sec. 26.05.475. Detail of trial counsel and defense counsel.
(a) For each general and special court-martial, the convening authority shall detail trial counsel, defense counsel, and assistants, as appropriate.
(b) A person who has acted as investigating officer, military judge, witness, or court member in a case may not act as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, defense counsel or assistant or associate defense counsel in the case.
(c) A person who has acted for the prosecution may not act in the same case for the defense. A person who has acted for the defense may not act in the same case for the prosecution.
(d) Trial counsel or defense counsel detailed in a general or special court- martial must be
(1) a judge advocate or, if serving as defense counsel, otherwise certified by the senior force judge advocate; and
(2) admitted to the practice of law in this state or otherwise permitted to appear in an action in the courts of this state.
Sec. 26.05.480. Detail or employment of reporters and interpreters.
(a) The convening authority of a general or special court-martial shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court and may detail or employ interpreters to interpret for the court.
(b) A person may not act as a reporter or interpreter under this section in a case if the person is the accuser, a witness, an investigating officer, counsel for a party, or, if the trial is a rehearing, a member of a prior court-martial in the same case.
Sec. 26.05.485. Absent and additional members.
(a) A member of a general or special court-martial may not be absent or excused after the court has been assembled for the trial of the accused unless the member is excused
(1) as a result of a challenge; or
(2) for good cause by the military judge or by order of the convening authority.
(b) If a general court-martial, other than a general court-martial composed of only a military judge, is reduced below five members, the military judge shall assign an available alternate member to the general court-martial to restore the court to five members. The trial may not proceed if a general court-martial, other than a general court-martial composed of only a military judge, is reduced below five members and no alternate is available for assignment.
(c) If a special court-martial, other than a special court-martial composed of only a military judge, is reduced below three members, the military judge shall assign an alternate member to the special court-martial to restore the court to three members. The trial may not proceed if a special court-martial, other than a special court-martial composed of only a military judge, is reduced below three members and no alternate is available for assignment.
(d) If the military judge of a court-martial composed of only a military judge is unable to proceed with a trial because of a challenge or for other good cause, the senior force judge advocate shall detail a new military judge. The trial shall proceed as if no evidence had previously been introduced, unless a verbatim record of the evidence previously introduced or a written stipulation of the evidence is read in court in the presence of the new military judge, the accused, and counsel for both sides.
Sec. 26.05.490. Charges and specifications.
(a) Charges and specifications must be signed by a member of the militia under oath before a commissioned officer authorized by AS 26.05.655 to administer oaths. The charges and specifications must state
(1) that the signer has personal knowledge of, or has investigated, the facts set out in the charges and specifications;
(2) that the charges and specifications are true in fact to the best of the signer’s knowledge and belief.
(b) The person proffering the charges and specifications shall present them to the proper authority. The proper authority receiving the charges and specifications shall immediately determine the disposition of the charges in the interest of justice and discipline, and the person accused shall be informed of the charges as soon as practicable.
Sec. 26.05.495. Compulsory self-incrimination prohibited.
(a) A member of the militia may not compel a person to make a self-incriminating statement or to answer a question if the answer may incriminate the person.
(b) A member of the militia may not interrogate or request a statement from a person suspected of an offense under this chapter without first informing the person of the nature of the accusation and advising the person that the person does not have to make any statement regarding the offense of which the person is accused or suspected and that any statement made by the person may be used as evidence against the person in a trial by court-martial.
(c) A member of the militia may not compel a person to make a statement or produce evidence before a military court if the statement or evidence is not material to the issue before the court and may tend to degrade the person.
(d) A statement obtained from a person in violation of this section or through the use of coercion, unlawful influence, or unlawful inducement may not be admitted into evidence against the person in a trial by court-martial.
Sec. 26.05.500. Investigation; preliminary hearing.
(a) A charge or specification may not be referred to a general court-martial for trial until an investigating officer makes a thorough and impartial investigation of all the matters set out in the charge or specification. The investigating officer shall inquire into the truth of the matters set out in the charges, consider the form of the charges, and recommend a disposition of the case in the interest of justice and discipline.
(b) The accused has the right to be represented by counsel at an investigation. If the accused requests the appointment of military counsel, the investigating officer shall refer the request to the senior force judge advocate, who shall promptly detail defense counsel to represent the accused at the investigation. Defense counsel detailed under this section shall meet the criteria for counsel under AS 26.05.475(d).
(c) In cases where there has been no grand jury proceeding on a charge or no grand jury proceeding is required, the authority investigating the accused shall
(1) advise the accused of the charges against the accused and of the accused’s right to be represented by counsel under (b) of this section;
(2) give the accused the opportunity to cross-examine witnesses against the accused, if the witnesses are available; a victim of an offense under AS 26.05.770 or 26.05.890 — 26.05.900 may not be required to testify at a preliminary hearing; a victim of an offense under AS 26.05.770 or 26.05.890 — 26.05.900 who declines to testify is considered unavailable for the purposes of the preliminary hearing;
(3) give the accused the opportunity to present evidence on the accused’s own behalf, either in defense or mitigation relevant to the limited purposes of the hearing; the investigating officer shall examine available witnesses requested by the accused.
(d) The presentation of evidence and examination of witnesses at a preliminary hearing, including cross-examination, shall be limited to matters relevant to the limited purposes of the hearing.
(e) If, after the investigation, the charges are referred to the court-martial, the investigating officer shall prepare a statement of the charges and the substance of the testimony taken, and a copy shall be given to the accused.
(f) If an investigation of an offense under this chapter is conducted before the accused is charged with the offense and the accused is present at the investigation and provided with counsel and an opportunity to cross-examine witnesses and present evidence under (c) of this section, no further investigation of that charge is necessary under this section unless the accused demands further investigation after the accused is informed of the charge. A demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer new evidence in the accused’s own behalf.
(g) If evidence adduced in an investigation under this section indicates that the accused committed an uncharged offense, the investigating officer may investigate the subject matter of that offense without the accused’s having first been charged with an offense under this chapter if the accused is
(1) present at the investigation;
(2) informed of the nature of each uncharged offense investigated; and
(3) provided with counsel and an opportunity to cross-examine witnesses and present evidence under (c) of this section.
(h) In this section, “victim” means a person who is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set out in a charge or specification being considered and who is named in a specification being considered.
Sec. 26.05.505. Forwarding of charges.
(a) When a person is held for trial by general court-martial, the commanding officer shall, within eight days after the accused is ordered into arrest or confinement, if practicable, forward the charges, together with the investigation and associated records, to the person exercising general court-martial jurisdiction.
(b) If it is not practicable to forward the charges and investigation and associated records under (a) of this section, the commanding officer shall provide the person with a written explanation for the delay as soon as possible.
Sec. 26.05.510. Advice of judge advocate and reference for trial.
(a) Before directing the trial of a charge by general court-martial, the convening authority shall refer it to a judge advocate for consideration and advice. The convening authority may not refer a specification under a charge to a general court-martial for trial unless the convening authority has been advised in writing by a judge advocate that
(1) the specification alleges an offense under this chapter;
(2) the specification is warranted by the evidence set out in the report of investigation under AS 26.05.500, if there is a report; and
(3) a court-martial has jurisdiction over the accused and the offense.
(b) The advice of the judge advocate under (a) of this section with respect to a specification under a charge shall include a written and signed statement by the judge advocate
(1) stating the judge advocate’s conclusions with respect to each matter set out in (a) of this section; and
(2) recommending to the convening authority what action to take regarding the specification; if the specification is referred for trial, the recommendation of the judge advocate must accompany the specification.
(c) If a charge or specification is not in the correct form or does not conform to the substance of the evidence set out in the investigating officer’s report, the convening authority, with the advice of the judge advocate, may correct the charge or specification to conform to the evidence.
Sec. 26.05.515. Service of charges.
A trial counsel shall serve or cause to be served on the accused a copy of the charges. A person may not, against the person’s objection, be brought to trial before a general court-martial within five days after the service of charges on the person, or before a special court-martial within three days after the service of charges on the person.
Sec. 26.05.520. Unlawfully influencing the action of a court.
(a) An authority convening a general, special, or summary court-martial, a commanding officer, or an officer serving on the staff of a convening authority or commanding officer may not censure, reprimand, or admonish the court, a member of the court, the military judge, or counsel appearing before the court, with respect to the findings of or sentence imposed by the court, or with respect to another exercise of the respective functions of the court, a member of the court, the military judge, or counsel appearing before the court in the conduct of the proceedings.
(b) A member of the militia may not attempt to coerce or, by unauthorized means, influence the action of a court-martial or a member of a court in reaching the findings or sentence in a case, or the action of a convening, approving, or reviewing authority with respect to a judicial act. This subsection does not apply to
(1) general instructional or informational courses in military justice if the courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial; or
(2) statements and instructions given in open court by the military judge, summary court-martial officer, or counsel.
(c) A member of the militia may not, in the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used, in whole or in part, for the purpose of determining whether a member of the militia of the state is qualified to be advanced in grade, in determining the assignment or transfer of a member of the militia of the state, or in determining whether a member of the militia of the state should be retained on active status,
(1) consider or evaluate the performance of duty of the member as a member of a court-martial or witness; or
(2) give a less favorable rating or evaluation of any counsel for the accused because of zealous representation before a court-martial.
(d) In this section, “unauthorized” means contrary to a statute or regulation of the United States or the state.
Sec. 26.05.525. Continuances.
The military judge of a general, special, or summary court-martial may, for reasonable cause, grant a continuance to a party for the time, and as often, as justice requires.
Sec. 26.05.530. Oaths or affirmations.
(a) Before performing their respective duties, military judges, general and special court-martial members, trial counsel, defense counsel, reporters, and interpreters shall take an oath or affirmation in the presence of the accused that they will perform their duties faithfully.
(b) The form of the oath or affirmation, the time and place of taking, the manner of recording, and a determination of whether the oath or affirmation shall be taken for all cases in which the duties are to be performed or for a particular case, shall be prescribed by rules of procedure. The rules may provide that, if a person takes an oath or affirmation with respect to a duty, the person need not take the oath or affirmation again on detailment to the duty.
(c) A witness before a court-martial shall be examined under oath or affirmation.
Sec. 26.05.535. Statute of limitations.
(a) A person charged with an offense under this chapter may not be tried or punished for the offense unless the person received sworn charges and specifications issued by an officer exercising court-martial jurisdiction over the command not later than three years after the commission of the offense or not later than two years after commission of the offense if the imposition of nonjudicial punishment is sought for the offense under the code of military justice.
(b) A period when the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation in this section.
(c) A period when the accused is absent from territory in which the proper authority has the ability to apprehend the accused, in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation in this section.
(d) When the United States is at war declared by the United States Congress or engaged in contingency operations ordered by the President of the United States, and those operations actually prevented the discovery of the offending behavior or the timely bringing of charges, as determined by a military judge at court-martial, the running of a period of limitation for an offense under this chapter is suspended until two years after the termination of hostilities as proclaimed by the President of the United States or by a joint resolution of the United States Congress if the offense
(1) involves fraud or attempted fraud against the United States, a state, or an agency of either, including a conspiracy to commit fraud;
(2) is committed in connection with the acquisition, care, handling, custody, control, or disposition of real or personal property of the United States or a state; or
(3) is committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or other termination or settlement, of a contract, subcontract, or purchase order that is connected with or related to the prosecution of the war, or with the disposition of inventory by a war contractor or government agency.
(e) If charges or specifications are dismissed as defective or insufficient for any cause, and the period prescribed by the applicable statute of limitations has expired or will expire within 180 days after the date of dismissal of the charges and specifications, trial and punishment under new charges and specifications are not barred by the statute of limitations if the new charges and specifications
(1) are received by an officer exercising summary court-martial jurisdiction over the command within 180 days after the dismissal of the charges or specifications;
(2) allege the same acts or omissions that were alleged in the dismissed charges or specifications or acts or omissions that were included in the dismissed charges or specifications.
Sec. 26.05.540. Former jeopardy.
Former jeopardy protections provided to a member of the militia are equivalent to those provided under art. I, sec. 9, Constitution of the State of Alaska, and under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
Sec. 26.05.545. Pleas of the accused.
(a) If, after arraignment, an accused makes an irregular pleading or, after a plea of guilty, initiates an action inconsistent with the plea, or if the accused appears to have entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty.
(b) With respect to a charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn before announcement of the sentence, in which event, the proceedings shall continue as though the accused had pleaded not guilty.
Sec. 26.05.550. Subpoena; process of military courts.
(a) A military judge, the president of a court-martial, or a summary court-martial officer may issue subpoenas and subpoenas duces tecum for the attendance of witnesses and production of books and records, if the courts are sitting within the state and the witnesses, books, and records sought are located in the state. A subpoena may be served by a person designated by the military judge, the president of the court-martial, or summary court-martial officer.
(b) If a person who is not a member of the militia of the state fails to comply with a subpoena issued under this section, the military judge, president of the court-martial, or summary court-martial officer may apply to a state court for an order to compel obedience by proceedings for contempt as if the subpoena had been issued by a court. The military judge, president of the court-martial, or summary court-martial officer may request the attorney general to bring the action.
(c) A person who is not a member of the militia, who has been subpoenaed to appear as a witness or to produce books and records before a court-martial or before a military or civil officer designated to take a deposition to be read in evidence before a court-martial, who has been paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending a criminal court of the state, and who wilfully neglects or refuses to appear or refuses to qualify as a witness or to testify or to produce evidence that the person may have been legally subpoenaed to produce is guilty of a violation and may be charged and punished as provided in AS 12.55.
Sec. 26.05.555. Contempt.
(a) A military judge or summary court-martial officer may punish for contempt a person who
(1) uses a menacing word, sign, or gesture in its presence;
(2) disturbs its proceedings by any riot or disorder; or
(3) wilfully disobeys a lawful writ, process, order, rule, decree, or command of the military judge or summary court-martial officer.
(b) A military judge or summary court-martial officer may punish a member of the militia for contempt as provided in AS 09.50.020 for civil contempt.
(c) A military judge or summary court-martial officer may punish a person who is not a member of the militia for direct contempt as provided in AS 09.50.020 for civil contempt.
Sec. 26.05.560. Defense of insanity.
(a) The accused may assert the affirmative defense of insanity as provided in AS 12.47.010. If the accused gives notice of the defense, the accused shall file with the military judge the notice required by AS 12.47.090.
(b) If the accused asserts the defense of insanity under (a) of this section, the court shall order an examination to be conducted that meets the standards of AS 12.47.070.
(c) If the defense of insanity is properly at issue, the military judge shall instruct the members of the court as to the defense and charge them to find the accused
(1) guilty;
(2) not guilty; or
(3) not guilty by reason of insanity.
(d) The accused may be found not guilty by reason of insanity if
(1) a majority of the members of the court-martial present at the time the vote is taken determine that the defense of insanity has been established; or
(2) in the case of a court-martial composed of a military judge or a summary court-martial officer sitting without court members, the military judge or summary court-martial officer determines that the defense of insanity has been established.
(e) In the case of a court-martial composed of a military judge or a summary court-martial officer sitting without court members, if the defense of insanity is properly at issue, the military judge or summary court-martial officer shall find the accused
(1) guilty;
(2) not guilty; or
(3) not guilty by reason of insanity.
(f) If an accused is found not guilty by reason of insanity, trial counsel shall, within 24 hours, file a petition under AS 47.30.700 for a screening investigation to determine the need for treatment if trial counsel has good cause to believe that the defendant is suffering from a mental illness and, as a result, is gravely disabled or likely to cause serious harm to self or others. In this subsection, “mental illness” has the meaning given in AS 47.30.915.
Sec. 26.05.565. Lack of mental capacity or mental responsibility; commitment of accused for examination and treatment.
(a) An accused who, as a result of a mental disease or defect that renders the accused incompetent to the extent that the accused is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of the case, may not be tried, convicted, or sentenced for an offense under this chapter as long as the incompetency exists.
(b) If trial counsel or defense counsel has reason to believe that the accused is unable to understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of the case, counsel may file a motion with the military judge assigned to the case for a determination of the competency of the accused. Upon the motion, or on the judge’s own motion, the court shall order an examination to be conducted and make a determination in accordance with the requirements of AS 12.47.100. If the military judge determines that the accused must be committed for the purpose of examination, and the accused is not otherwise subject to commitment under AS 47.30.700 – 47.30.915, the military judge shall order the convening authority to seek the assistance of the attorney general in seeking a commitment under AS 12.47.100.
(c) If the military court determines that the accused is incompetent to stand trial and the accused is not otherwise subject to commitment under AS 47.30.700 – 47.30.915, the military judge shall order the convening authority to seek the assistance of the attorney general in seeking a commitment under AS 12.47.110.
(d) If, at the end of a period of commitment under (b) and (c) of this section, it is determined that the accused’s mental condition has not improved so as to permit the trial to proceed, the charges shall be dismissed without prejudice, and continued commitment proceedings shall be governed by the provisions relating to civil commitment under AS 47.30.700 – 47.30.915. If the accused remains incompetent for five years after the charges have been dismissed under this subsection, the accused may not be charged again for an offense under this chapter arising out of the facts alleged in the original charges.
(e) When the custodian of an accused person hospitalized under (c) of this section determines that the person has recovered to the extent that the accused is able to understand the nature of the proceedings against the accused and to conduct or cooperate intelligently in the defense of the case, the custodian shall promptly transmit a notification of the determination to the general court-martial convening authority for the accused and trial and defense counsel.
(f) Upon receipt of the notice, the convening authority shall promptly take custody of the accused unless the accused is no longer a member of the militia.
(g) If the accused remains a member of the militia, the military judge detailed to the case shall conduct the hearing required under AS 12.47.120. If the judge finds the accused competent, the court-martial shall be assembled.
(h) The custodian of the accused person may retain custody of the person for not more than 30 days after transmitting the notifications required under (e) of this section.
(i) If, during a period of commitment under this section, the accused is no longer a member of the militia, the convening authority shall promptly notify the custodian and the attorney general; the custodian and the attorney general may take further action that is legally permissible.
Sec. 26.05.570. Voting and rulings.
(a) Voting by members of a general or special court-martial on the findings and on the sentence shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall immediately announce the result of the ballot to the members of the court on the record, in an open court, and in the presence of all parties to the trial.
(b) The military judge shall rule on all questions of law and all interlocutory questions arising during the proceedings. A ruling made by the military judge on a question of law or an interlocutory question, other than the factual issue of mental responsibility of the accused, is final and constitutes the ruling of the court. However, the military judge may change the ruling at any time during the trial before a vote is taken on the findings. Unless the ruling is final, if a member objects to a ruling, the court shall be cleared and closed, and the question shall be decided by a voice vote as provided in AS 26.05.575, beginning with the junior in rank.
(c) Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense under this chapter and charge them that
(1) the accused is presumed to be innocent until the guilt of the accused is established by legal and competent evidence beyond a reasonable doubt;
(2) if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused, and the accused must be acquitted;
(3) if there is a reasonable doubt as to the degree of guilt, a finding of guilt must be in a lower degree as to which there is no reasonable doubt; and
(4) the burden of proof to establish the guilt of the accused beyond a reasonable doubt is on the state.
(d) A military judge sitting without court members shall
(1) determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence;
(2) make a general finding and shall, in addition, on request, find the facts specially.
(e) If a military judge sitting without court members files an opinion or memorandum of decision, the opinion or memorandum of decision is sufficient if the findings of fact appear in the opinion or memorandum of decision.
Sec. 26.05.575. Number of votes required.
(a) A person may not be convicted of an offense under this chapter that is tried by a court-martial unless by the unanimous verdict of the members of the court present at the time the vote is taken.
(b) All other questions to be decided by the members of a general or special court-martial shall be determined by a majority vote, but a determination to reconsider a finding of guilty or to reconsider a sentence, with a view toward decreasing it, may be made by any lesser vote that indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence. A tie vote on a challenge disqualifies the member challenged. A tie vote on any other question is a determination in favor of the accused.
Sec. 26.05.580. Record of trial.
(a) Each general and special court-martial shall keep a separate record of the proceedings in each case brought before it, and the record must be authenticated by the signature of the military judge. If the military judge cannot authenticate the record because of the military judge’s death, disability, or absence, the record shall be authenticated by the signature of the trial counsel or, if the trial counsel is unable to authenticate the record because of the trial counsel’s death, disability, or absence, then by the signature of a member of the court. In a court-martial consisting of only a military judge, the record shall be authenticated by the court reporter under the same conditions that would impose a duty on a member under this subsection.
(b) In each general and special court-martial case resulting in a conviction, a complete verbatim record of the proceedings and testimony shall be prepared. In all other court-martial cases, the record must contain the matters as may be prescribed by rules of procedure.
(c) Each summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be authenticated in the manner as may be prescribed by rules of procedure.
(d) A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as the record is authenticated.
Sec. 26.05.585. Cruel and unusual punishments prohibited.
A court-martial may not impose on a member of the militia punishment by flogging, branding, marking, or tattooing on the body, or another cruel or unusual punishment. The use of irons, single or double, except for the purpose of safe custody, is prohibited.
Sec. 26.05.590. Punishments; maximum limits.
(a) A court-martial may not impose a punishment that exceeds the limits set out in the code of military justice and may not impose a sentence of death. A sentence of confinement imposed under this chapter may not exceed 10 years. An offense under this chapter that is punishable by a term of confinement of more than one year is a felony offense. Except for convictions by a summary court-martial and except as otherwise specifically provided in the code of military justice, all other offenses under this chapter are misdemeanors. A conviction by a summary court-martial is a violation.
(b) A nonjudicial punishment may not include a sentence of confinement or separation from military service.
Sec. 26.05.595. Deferment of sentences.
(a) If an accused is under sentence to confinement that has not yet been ordered executed, the convening authority or, if the accused is no longer under the convening authority’s jurisdiction, the person exercising general court-martial jurisdiction over the command to which the accused is currently detailed may, in that person’s sole discretion, defer service of the sentence to confinement. The deferment terminates when the sentence is ordered to be executed. The deferment may be rescinded at any time by the authority who granted it or, if the accused is no longer under that person’s jurisdiction, by the person exercising general court-martial jurisdiction over the command to which the accused is currently detailed.
(b) If a court-martial sentences an accused to confinement, the convening authority may, without the consent of the accused, defer the service of the sentence until after the accused has been permanently released to the militia of the state by a state, the United States, or a foreign country
(1) that had custody of the accused;
(2) that temporarily returned the accused to the militia of the state for trial by court-martial; and
(3) to which, after the court-martial, the militia of the state returned the accused under the authority of a mutual agreement or treaty.
(c) In a case in which a court-martial sentences an accused to confinement and the sentence to confinement has been ordered executed, but in which review of the case under AS 26.05.615, 26.05.640, or 26.05.645 is pending, the adjutant general may defer further service of the sentence to confinement while that review is pending.
(d) In (b) of this section, “state” includes the District of Columbia and any commonwealth, territory, or possession of the United States.
Sec. 26.05.600. Execution of confinement.
A person must serve a sentence of confinement imposed by a court-martial, whether or not the sentence includes discharge or dismissal from the militia of the state, and whether or not the discharge or dismissal has been executed. The sentence may be carried into execution by confinement in a place authorized by the code of military justice. A person confined under the code of military justice is subject to the same discipline and treatment as other persons confined or committed to the place of confinement.
Sec. 26.05.605. Error of law; lesser included offense.
(a) A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.
(b) A reviewing authority authorized under the code of military justice to approve or affirm a finding of guilt may approve or affirm, instead, so much of the finding as includes a lesser included offense under this chapter.
Sec. 26.05.610. Withdrawal of appeal.
In a case subject to appellate review under the code of military justice, the accused may, at any time, file with the convening authority a written statement expressly withdrawing the right of the accused to the appeal. The withdrawal shall be signed by both the accused and the accused’s defense counsel and filed in accordance with rules of procedure.
Sec. 26.05.615. Appeal by the state.
(a) In a trial by court-martial in which a punitive discharge may be imposed, the state may appeal to the Military Appeals Commission established under this chapter
(1) an order or ruling of the military judge that terminates the proceedings with respect to a charge or specification;
(2) an order or ruling that excludes evidence that is substantial proof of a fact material in the proceeding;
(3) an order or ruling that directs the disclosure of classified information;
(4) an order or ruling that imposes sanctions for nondisclosure of classified information;
(5) the refusal of the military judge to issue a protective order sought by the prosecution to prevent the disclosure of classified information;
(6) the refusal of the military judge to enforce an order issued under (5) of this subsection that was previously issued by an appropriate authority.
(b) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within 72 hours after the order or ruling. The notice must include a certification by the trial counsel that the appeal is not taken for the purpose of delay and, if the order or ruling appealed is one that excludes evidence, that the evidence excluded is substantial proof of a fact material in the proceeding.
(c) An appeal under this section shall be forwarded to the Military Appeals Commission under AS 26.05.640. In ruling on the appeal, the Military Appeals Commission may act only with respect to matters of law.
(d) A period of delay resulting from an appeal under this section shall be excluded in deciding an issue involving the denial of a speedy trial, unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was frivolous and without merit.
(e) The state may not appeal a finding of not guilty with respect to a charge or specification by the members of the court-martial, or by a judge in a bench trial if the finding was not made on reconsideration.
Sec. 26.05.620. Vacation of suspension.
(a) A probationer serving a period of probation under a sentence suspended by a special court-martial that, as approved, includes a bad-conduct discharge, or a suspended general court-martial sentence, is entitled to a hearing before the suspension is vacated. The probationer shall be represented at the hearing by military counsel if the probationer requests representation.
(b) If the suspended sentence was imposed by a special court-martial, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged violation of probation. The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If the officer vacates the suspension, the unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in the code of military justice.
(c) The suspension of another sentence may be vacated by an authority for the command in which the accused is serving or detailed who is competent to convene a court of the kind that imposed the sentence.
Sec. 26.05.625. Petition for a new trial.
At any time within two years after approval by the convening authority of a court-martial sentence, the accused may petition the adjutant general for a new trial on the grounds of newly discovered evidence or fraud on the court-martial.
Sec. 26.05.630. Restoration.
(a) All rights, privileges, and property affected by an executed part of a court-martial sentence that has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and the executed part is included in a sentence imposed on the new trial or rehearing.
(b) If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the governor may substitute an administrative form of discharge unless the accused is to serve out the remainder of the accused’s enlistment.
(c) If a previously executed sentence of dismissal is not imposed on a new trial, the governor may substitute an administrative form of discharge, and a commissioned officer dismissed under the original sentence may be reappointed by the governor alone to the commissioned grade and rank that, in the opinion of the governor, the former officer would have attained had the officer not been dismissed. The reappointment of the former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only to the extent the governor may direct. The time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.
Sec. 26.05.635. Leave required to be taken pending review of court-martial convictions.
In accordance with rules adopted under AS 26.05.360, an accused who has been sentenced by a court-martial may be required to take leave pending completion of action under this chapter if the sentence includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The accused may be required to begin the leave on the date on which the sentence is approved under the code of military justice, or at any time after that date, and the leave may be continued until the date on which action under this chapter is completed, or may be terminated at an earlier time.
Sec. 26.05.640. Military Appeals Commission.
(a) The Military Appeals Commission is established in the Department of Military and Veterans’ Affairs. The commission is a quasi-judicial agency.
(b) The commission has
(1) jurisdiction to hear appeals from courts-martial by the
(A) state in accordance with AS 26.05.615; and
(B) accused regarding sentences, punishments, clearly erroneous findings, and matters of law; and
(2) the discretion to remand those cases to a competent court-martial.
(c) The commission consists of three members appointed by the governor and confirmed by a majority of the members of the legislature in joint session. A member shall be a resident of this state and
(1) be licensed to practice law
(A) in this state and be a member in good standing of the Alaska Bar Association;
(B) in another state and be a member in good standing of the bar of that state; or
(C) as a member of the bar of a federal court;
(2) have engaged in the active practice of law for at least five years;
(3) be a former commissioned officer in the armed forces of the United States or the reserve components, or in the militia of a state; and
(4) have at least five years’ experience as an officer in the judge advocate general’s corps of the armed forces of the United States or the militia of the state.
(d) Except as provided in AS 39.05.080(4), an appointee selected to fill a vacancy shall hold office for the unexpired term of the member whose vacancy is filled. A vacancy in the commission does not impair the authority of a quorum of members to exercise the powers and perform the duties of the commission.
(e) A member may be reappointed if the reappointment complies with this section.
(f) The members of the commission shall select a chair from among the members of the commission. The selection shall be subject to the approval of the adjutant general.
(g) The governor may remove a commissioner from office for cause including incompetence, neglect of duty, or misconduct in office. A commissioner, to be removed for cause, shall be given a copy of the charges and offered an opportunity to be publicly heard in person or by counsel in the commissioner’s own defense upon not less than 10 days’ notice. If a commissioner is removed for cause, the governor shall file with the lieutenant governor a complete statement of all charges made against the commissioner and the governor’s finding based on the charges, together with a complete record of the proceedings.
(h) The adjutant general shall adopt regulations to govern appellate procedure before the Military Appeals Commission. The regulations shall be substantially similar to the provisions for post-trial procedure and review of courts-martial under 10 U.S.C. 801 – 946. The regulations must be approved by the governor. Regulations adopted under this section are exempt from AS 44.62 (Administrative Procedure Act).
(i) The governor may appoint an alternate member, who will serve temporarily in cases where a Military Appeals Commission member is removed or otherwise unavailable to perform the duties of a commission member. The alternate member must be confirmed by a majority of the members of the legislature in joint session and otherwise meet the qualifications specified in (c) of this section.
Sec. 26.05.645. Review by civilian court.
(a) After exhausting all remedies available under the code of military justice, a party may file a petition for review in the Alaska supreme court from a final decision of the Military Appeals Commission that upholds a conviction and sentence imposed by a general or special court-martial for an offense under this chapter if the sentence
(1) includes confinement imposed under the code of military justice; and
(2) meets the criteria for appeal under AS 12.55.120.
(b) A decision by the Alaska supreme court on a matter reviewed under a petition filed under (a) of this section is final and binding on all parties, the Military Appeals Commission, and the court-martial.
(c) A party filing a petition for review under this section shall comply with the rules of court applicable to petitions for review in the appellate courts, including the deadlines for filing.
Sec. 26.05.650. Appellate and civilian counsel.
(a) If the attorney general requests representation, the senior force judge advocate shall detail a judge advocate as appellate counsel to represent the state in a proceeding filed under AS 26.05.640 as civilian counsel, in a petition filed under AS 26.05.645, or as counsel before any federal court.
(b) The accused has the right to be represented by detailed military counsel before the Military Appeals Commission under AS 26.05.640 and before the reviewing court in a petition filed under AS 26.05.645.
(c) Upon the request of an accused entitled to be represented under (b) of this section, the senior force judge advocate shall detail a judge advocate to represent the accused in a review or appeal. Counsel detailed under this subsection shall meet the criteria for counsel under AS 26.05.475(d).
(d) A person who has acted as investigating officer, trial counsel, military judge, witness, or court member in the case may not act as civilian review counsel for the accused detailed under (c) of this section.
(e) An accused may choose to be represented by civilian counsel at the expense of the accused.
Sec. 26.05.655. Authority to administer oaths and act as notary public.
(a) The following persons may administer oaths for the purposes of military administration, including military justice:
(1) a judge advocate;
(2) a summary court-martial;
(3) the adjutant general and assistant adjutant generals;
(4) a commanding officer of the militia;
(5) a person authorized by federal or state statute or regulation or by regulations of the armed forces of the United States or the state to administer oaths or act as a notary public.
(b) The following persons may administer oaths necessary in the performance of their duties:
(1) the president, military judge, and trial counsel for general and special courts-martial;
(2) an officer designated to take a deposition;
(3) a person detailed to conduct an investigation;
(4) a recruiting officer;
(5) a person authorized by federal or state statute or regulation or by regulations of the armed forces of the United States to administer oaths or act as a notary public.
(c) The person’s signature without seal, together with the title of the person’s office, is prima facie evidence of the person’s authority to administer oaths and act as a notary public under this section.
Sec. 26.05.660. Delegation by the governor.
The governor may delegate any authority vested in the governor under the code of military justice, and provide for the subdelegation of the authority, except the powers given to the governor by AS 26.05.170 and 26.05.450.
Sec. 26.05.665. Military justice account.
(a) The military justice account is established in the general fund for the purpose of paying the expenses of the department in carrying out its duties relating to the code of military justice, including the fees and authorized travel expenses of witnesses, experts, victims, court reporters, and interpreters, fees for the service of process, costs of collection, apprehension, detention, and confinement, pay and allowances for court-martial duty, and all other necessary expenses of the prosecution and administration of military justice not otherwise payable by another source.
(b) The account consists of money appropriated to it by the legislature and interest received on money in the account.
(c) The department may use money appropriated to the account to pay for expenses related to the duties described in (a) of this section.
(d) Money appropriated to the account does not lapse.
(e) Nothing in this section creates a dedicated fund.
(f) In this section, “account” means the military justice account established under (a) of this section.
Sec. 26.05.670. Payment, collection, and deposit of fines.
(a) A fine imposed by a military court or through the imposition of nonjudicial punishment may be paid to the state and delivered to the court or imposing officer, or to a person executing process.
(b) If the person on whom the fine was imposed fails to pay, the department may collect the fine by
(1) retaining pay or allowances due or to become due to the person fined from the militia of the state or the United States;
(2) garnishment or levy, together with costs, on the wages, goods, and property of a person delinquent in paying a fine in accordance with AS 09.38.
(c) A fine or penalty required to be paid under this section shall be deposited into the general fund and accounted for under AS 37.05.142.
Sec. 26.05.675. Pay and allowances for court-martial duty.
For each day of duty as a member of a general court-martial, or as a witness under summons from the president or judge advocate of the court, officers and enlisted persons shall be paid as provided in AS 26.05.260(b).
Sec. 26.05.680. Uniformity of interpretation.
The code of military justice shall be construed to carry out its general purpose and, so far as practicable, in a manner uniform with 10 U.S.C. 801 – 946.
Sec. 26.05.685. Immunity for action of military courts.
A person acting under the code of military justice, whether as a member of the militia or as a civilian, shall be immune from any personal liability for any of the acts or omissions that the person did or failed to do as part of the person’s duties under the code of military justice.
Sec. 26.05.690. Principals.
A member of the militia who commits an offense under this chapter, or aids, abets, counsels, commands, solicits, or procures the commission of the offense, or causes an act to be done that, if directly performed by the member, would be punishable under this chapter, is a principal.
Sec. 26.05.695. Accessory after the fact.
A member of the militia who, knowing that an offense under this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent the offender’s apprehension, trial, or punishment may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.697. Misprision of serious offense.
A member of the militia who (1) knows that another person has committed a serious offense, (2) wrongfully conceals the commission of the offense, and (3) fails to make the commission of the offense known to a civilian or military authority as soon as possible may be punished by up to three years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.700. Conviction of lesser included offense.
An accused may be found guilty of an offense necessarily included in the offense charged, of an attempt to commit either the offense under this chapter charged or an offense necessarily included in the offense charged, or of an offense designated by the President of the United States, in the most recent Manual for Courts-Martial, United States, as a presidentially prescribed lesser included offense under 10 U.S.C. 879.
Sec. 26.05.705. Attempts.
(a) An act done with specific intent to commit an offense under this chapter that amounts to more than mere preparation and tends, even though failing, to effect its commission, is an attempt to commit the offense.
(b) A member of the militia who attempts to commit an offense under this chapter may be punished as a court-martial may direct, unless otherwise specifically prescribed. However, a court-martial may not direct a punishment for an attempt to commit an offense that is greater than the maximum punishment for the offense.
(c) A member of the militia may be convicted of an attempt to commit an offense under this chapter even if it appears, at the trial, that the offense was consummated.
Sec. 26.05.710. Conspiracy.
A member of the militia who conspires with another person to commit an offense under this chapter may, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct, unless otherwise specifically prescribed. However, a court-martial may not direct a punishment for conspiracy to commit an offense that is greater than the maximum punishment for the offense.
Sec. 26.05.715. Solicitation.
(a) A member of the militia who solicits or advises another or others to desert in violation of AS 26.05.730 or to mutiny in violation of AS 26.05.775 may, if the offense solicited or advised is attempted or committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not attempted or committed, the member may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who solicits or advises another or others to commit an act of misbehavior before the enemy in violation of AS 26.05.800 or an act of sedition in violation of AS 26.05.775 may, if the offense solicited or advised is committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed, the member may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who solicits or advises another person to commit an offense under this chapter, other than an offense specified in (a) or (b) of this section, may be punished by confinement for up to the maximum punishment of the underlying offense, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.720. Fraudulent enlistment, appointment, or separation.
A person who procures the person’s own enlistment or appointment in the militia of the state by knowingly false representation or deliberate concealment as to the person’s qualifications for the enlistment or appointment and receives pay or allowances under the enlistment or appointment, or procures the person’s own separation from the militia of the state by knowingly false representation or deliberate concealment as to the person’s eligibility for that separation, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.725. Unlawful enlistment, appointment, or separation.
A member of the militia who effects an enlistment or appointment in or a separation from the militia of the state of a person who is known to the member to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.730. Desertion.
(a) A person is guilty of desertion if the person is a member of the militia and
(1) without authority, goes or remains absent from the person’s unit, organization, or place of duty with intent to remain away from the unit, organization, or place of duty permanently;
(2) quits the person’s unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
(3) without being regularly separated from one force of the militia of the state,
(A) enlists or accepts an appointment in the same or another force of the militia of the state, the military forces of another state, or one of the armed forces of the United States, without fully disclosing the fact that the person has not been regularly separated; or
(B) enters a foreign armed service except when authorized by the United States.
(b) A commissioned officer of the militia commits the offense of desertion if, after tender of the officer’s resignation and before notice of its acceptance, the officer quits the officer’s post or proper duties without leave and with intent to remain away permanently.
(c) A person found guilty of desertion or attempt to desert may be punished, if the offense is committed in time of war, or emergency as described in AS 26.05.070,
(1) by confinement of not more than 10 years, by separation with a characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the offense is committed in time of war;
(2) by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the desertion or attempt to desert occurs at a time other than a time of war.
Sec. 26.05.735. Absence without leave.
A member of the militia who, without authority, (1) fails to go to the member’s appointed place of duty at the time prescribed, (2) goes from the member’s place of duty, or (3) is absent or remains absent from the member’s unit, organization, or place of duty at which the member is required to be at the time prescribed may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.737. False or unauthorized pass offenses.
(a) A member of the militia who wrongfully and falsely makes, alters, counterfeits, or tampers with a military or official pass, permit, discharge certificate, or identification card may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who wrongfully sells, gives, lends, or disposes of a false or unauthorized military or official pass, permit, discharge certificate, or identification card, knowing that the pass, permit, discharge certificate, or identification card is false or unauthorized, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who wrongfully uses or possesses a false or unauthorized military or official pass, permit, discharge certificate, or identification card, knowing that the pass, permit, discharge certificate, or identification card is false or unauthorized, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.740. Missing movement; jumping from vessel.
A member of the militia who, (1) through neglect or design, misses the movement of a ship, aircraft, or unit with which the member is required, in the course of duty, to move, or (2) intentionally or wrongfully jumps into the water from a vessel in use by the armed forces may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.745. Contempt toward officials.
(a) A commissioned officer of the militia who uses contemptuous words against the President or Vice President of the United States, the United States Congress, the United States Secretary of Defense, the United States Secretary of Homeland Security, the secretary of a military department of the United States, or the governor or legislature of this state may be punished by separation with characterization up to dishonorable discharge and by such other punishment as a court-martial may direct.
(b) A court-martial may not impose a sentence of confinement under this section.
Sec. 26.05.750. Disrespect toward superior commissioned officer.
(a) A member of the militia who behaves with disrespect toward the member’s superior commissioned officer may be punished by separation with characterization up to dishonorable discharge and by such other punishment as a court-martial may direct.
(b) A court-martial may not impose a sentence of confinement under this section.
Sec. 26.05.755. Assaulting or wilfully disobeying superior commissioned officer.
A member of the militia who (1) strikes the member’s superior commissioned officer or draws or lifts up any weapon or offers any violence against the superior officer while the superior officer is in the execution of the superior officer’s office, or (2) wilfully disobeys a lawful command of the member’s superior commissioned officer may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.760. Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer.
A warrant officer or enlisted member of the militia who (1) strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while the officer is in the execution of the officer’s office, (2) wilfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer, or (3) treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer while the officer is in the execution of the officer’s office may be punished by up to two years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.765. Failure to obey order or regulation.
Any member of the militia who (1) violates or fails to obey a lawful general order or regulation, (2) having knowledge of any other lawful order issued by a member of the militia of the state that the member has a duty to obey, fails to obey the order, or (3) is derelict in the performance of the member’s duties may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.767. Impersonation of officer, noncommissioned officer, petty officer, agent, or official.
(a) A member of the militia who wrongfully and wilfully impersonates (1) an officer, noncommissioned officer, or petty officer, (2) an agent of superior authority of one of the armed forces of the United States or of the militia of the state, or (3) an official of a government shall be punished as a court-martial may direct.
(b) A member of the militia who wrongfully, wilfully, and with intent to defraud impersonates (1) an officer, noncommissioned officer, or petty officer, (2) an agent of superior authority of one of the armed forces of the United States or of the militia of the state, or (3) an official of a government may be punished by up to three years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who wrongfully, wilfully, and without intent to defraud impersonates an official of a government by committing an act that exercises or asserts the authority of the office that the person claims to have may be punished by up to six months of confinement, by separation with characterization up to bad-conduct discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.768. Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button.
A member of the militia who wears on the member’s uniform or civilian clothing an insignia, decoration, badge, ribbon, device, or lapel button that the member is not authorized to wear may be punished by up to six months of confinement, by separation with characterization up to bad-conduct discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.770. Cruelty and maltreatment.
A member of the militia who is guilty of cruelty toward, or oppression or maltreatment of, another person subject to the member’s orders may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.775. Mutiny or sedition.
(a) A member of the militia is guilty of mutiny if the member, with intent to usurp or override lawful military authority, refuses, in concert with another person, to obey orders or otherwise do the member’s duty or creates violence or a disturbance.
(b) A member of the militia is guilty of sedition if the member, with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with another person, revolt, violence, or other disturbance against the authority.
(c) A member of the militia is guilty of a failure to suppress or report a mutiny or sedition if the member fails to do the member’s utmost to prevent and suppress a mutiny or sedition being committed in the member’s presence or fails to take all reasonable means to inform the member’s superior commissioned officer or commanding officer of a mutiny or sedition that the member knows or has reason to believe is taking place.
(d) A member who is found guilty of mutiny, sedition, or failure to suppress or report a mutiny or sedition under this section may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.780. Resistance, flight, breach of arrest, and escape.
A member of the militia who (1) resists apprehension, (2) flees from apprehension, (3) breaks arrest, or (4) escapes from custody or confinement may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.785. Releasing prisoner without proper authority; drinking or using drugs with prisoner.
(a) A member of the militia who, without proper authority, releases a prisoner committed to the member’s charge or, through neglect or design, suffers a prisoner to escape may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law.
(b) A member of the militia who unlawfully drinks an alcoholic beverage with a prisoner or unlawfully uses a drug with a prisoner may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-marshal may direct, whether or not the prisoner was committed in strict compliance with law.
Sec. 26.05.790. Unlawful detention.
A member of the militia who, except as provided by law or regulation, apprehends, arrests, or confines another person may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.793. Wrongful interference with adverse administrative proceeding.
A member of the militia who, having reason to believe that an adverse administrative proceeding is pending against a person subject to this chapter, wrongfully acts with the intent to influence, impede, or obstruct the conduct of the proceeding or otherwise obstruct the due administration of justice may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.795. Noncompliance with procedural rules.
A member of the militia who knowingly and intentionally
(1) is responsible for unnecessary delay in the disposition of the case of another person accused of an offense under this chapter may be punished by up to six months of confinement, by separation with characterization up to a bad conduct discharge, and by such other punishment as a court-martial may direct; or
(2) fails to enforce or comply with a provision of this chapter regulating the proceedings before, during, or after trial of an accused may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.796. Wrongful refusal to testify.
A member of the militia who, during a preliminary hearing or in the presence of a court-martial, board of officers, military commission, court of inquiry, or officer taking a deposition of or for the state, wrongfully refuses to qualify as a witness or answer a question after having been directed to do so by the person presiding over the proceeding may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.798. Retaliation.
A member of the militia who, with the intent to retaliate against a person for reporting or planning to report a criminal offense or for making or planning to make a protected communication, or who, with the intent to discourage any person from reporting a criminal offense or from making or planning to make a protected communication, (1) wrongfully takes or threatens to take an adverse personnel action against a person or (2) wrongfully withholds or threatens to withhold a favorable personnel action with respect to a person may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.800. Misbehavior before the enemy.
(a) A member of the militia is guilty of misbehavior before the enemy if the member is before or in the presence of the enemy, or is facing a threat as described in AS 26.05.070, and
(1) runs away;
(2) shamefully abandons, surrenders, or delivers up a command, unit, place, or military property that the member has a duty to defend;
(3) through disobedience, neglect, or intentional misconduct, endangers the safety of the command, unit, place, or military property;
(4) casts away the member’s arms or ammunition;
(5) engages in cowardly conduct;
(6) quits a place of duty to plunder or pillage;
(7) causes false alarms in a command, unit, or place under control of the armed forces of the United States or the militia of the state;
(8) wilfully fails to do the utmost to encounter, engage, capture, or destroy enemy troops, combatants, vessels, aircraft, or other thing that the member has a duty to encounter, engage, capture, or destroy; or
(9) does not afford all practicable relief and assistance to the troops, combatants, vessels, or aircraft of the armed forces of the United States or an ally of the United States, this state, or another state when engaged in battle.
(b) A member found guilty of misbehavior before the enemy under this section may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.805. Subordinate compelling surrender.
A member of the militia who compels or attempts to compel the commander of the militia of this state or of any other state, of a place, a vessel, an aircraft, or another military property, or of a body of members of the armed forces to give it up to an enemy or to abandon it in the face of a threat described in AS 26.05.070, or who strikes the colors or flag to an enemy without proper authority, may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.810. Improper use of countersign.
A member of the militia who, in time of war, or emergency as described in AS 26.05.070, discloses the parole or countersign to a person not entitled to receive it or who gives to another person who is entitled to receive and use the parole or countersign a different parole or countersign from that which, to the person’s knowledge, the member was authorized and required to give may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.815. Forcing a safeguard.
A member of the militia who forces a safeguard may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.820. Captured or abandoned property.
(a) A member of the militia shall secure all public property taken for the service of the United States or the state and shall give notice and turn over to the proper authority without delay all captured or abandoned property in the member’s possession, custody, or control.
(b) A member of the militia who
(1) fails to carry out the duties prescribed in (a) of this section and buys, sells, trades, or in any way deals in or disposes of taken, captured, or abandoned property, as a result of which the member receives or expects to receive any profit, benefit, or advantage to the member or another person directly or indirectly connected with the member may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct; or
(2) engages in looting or pillaging may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.825. Aiding the enemy.
A member of the militia who (1) aids or attempts to aid the enemy or a hostile individual or group as described in AS 26.05.070 with arms, ammunition, supplies, money, or other things, or (2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with, the enemy or hostile individual or group, either directly or indirectly, may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.830. Misconduct as prisoner.
A member of the militia who, while in the hands of the enemy or a hostile individual or group as described in AS 26.05.070, (1) for the purpose of securing favorable treatment by the person’s captors, acts without proper authority in a manner contrary to law, custom, or regulation, to the detriment of other persons of whatever nationality held by the enemy or hostile individual or group as civilian or military prisoners, or (2) while in a position of authority over a person, maltreats the person without justifiable cause may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.833. Offenses against correctional custody and restriction.
(a) A member of the militia who (1) is placed in correctional custody by a person authorized to do so, (2) is placed under physical restraint while in correctional custody, and (3) escapes from the physical restraint before the member is released from physical restraint by proper authority may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who (1) is placed in correctional custody by a person authorized to do so, (2) is placed under restraint other than physical restraint while in correctional custody, and (3) goes beyond the limits of the restraint before the member is released from or relieved of the restraint by proper authority may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who (1) is ordered to be restricted to certain limits by a person authorized to do so and (2) with knowledge of the limits of the restriction, goes beyond the limits before the member is released from the limitations by proper authority may be punished by up to six months of confinement, by separation with characterization up to bad-conduct discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.835. False official statements or oaths.
(a) A member of the militia who, with intent to deceive, signs a false record, return, regulation, order, or other official document made in the line of duty, knowing it to be false, or makes a false official statement in the line of duty, knowing it to be false, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who (1) takes an oath that is in a matter in which the oath is required or authorized by law and that is administered by a person who has the authority to administer the oath and (2) makes or subscribes to a statement that is false and that the person does not believe to be true at the time the person takes the oath may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.840. Military property; loss, damage, destruction, or wrongful disposition.
A member of the militia who, without proper authority, (1) sells or otherwise disposes of, (2) wilfully or through neglect damages, destroys, or loses, or (3) wilfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of, military property of the United States or of any state, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.845. Property other than military property; waste, spoilage, or destruction.
A member of the militia who wilfully or recklessly wastes, spoils, or otherwise wilfully and wrongly destroys or damages any property other than military property of the United States or of any state may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.850. Improper hazarding of vehicle, aircraft, or vessel.
(a) A member of the militia who wilfully and wrongfully hazards or suffers to be hazarded a vehicle, aircraft, or vessel of the armed forces of the United States or the militia of the state may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who negligently hazards or suffers to be hazarded a vehicle, aircraft, or vessel of the armed forces of the United States or the militia of the state may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.855. Drunken, impaired, or reckless operation of a vehicle, aircraft, or vessel.
(a) A member of the militia who operates or physically controls a nonmilitary vehicle, aircraft, or vessel in a negligent or reckless manner may be punished by separation with characterization up to dishonorable discharge and by such other punishment as a court-martial may direct if the charge is for negligent operation or control, or by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the charge is for reckless operation or control. A court-martial may not impose a sentence of confinement under this subsection if the charge is for negligent operation or control.
(b) A member of the militia who (1) operates or physically controls a nonmilitary vehicle, aircraft, or vessel while impaired by a controlled substance, or (2) operates or is in actual physical control of a nonmilitary vehicle, aircraft, or vessel while under the influence of alcohol or when the alcohol concentration in the person’s blood or breath is equal to or exceeds the applicable limit under (d) of this section may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct, or under (e) of this section if the member is not in active duty status at the time of the offense, or by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the member is in active duty status at the time of the offense.
(c) A member of the militia who (1) operates or physically controls a vehicle, aircraft, or vessel of the armed forces of the United States or the militia of a state in a negligent or reckless manner or while impaired by a controlled substance, or (2) operates or is in actual physical control of a vehicle, aircraft, or vessel of the armed forces of the United States or the militia of a state while under the influence of alcohol or when the alcohol concentration in the person’s blood or breath is equal to or exceeds the applicable limit under (d) of this section may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(d) For purposes of (b) and (c) of this section,
(1) in the case of the operation or control of a vehicle, aircraft, or vessel in the United States, the applicable limit on the alcohol concentration in a person’s blood or breath is the lesser of
(A) the blood alcohol content limit under the law of the state in which the conduct occurred, except as provided under (3) of this subsection for conduct on a military installation that is in more than one state; and
(B) the blood alcohol content limit under AS 28.35.030;
(2) in the case of the operation or control of a vehicle, aircraft, or vessel outside the United States, the applicable blood alcohol content limit is 0.10 grams of alcohol for each 100 milliliters of blood with respect to alcohol concentration in a person’s blood and is 0.10 grams of alcohol for each 210 liters of breath with respect to alcohol concentration in a person’s breath, as shown by chemical analysis or a lower limit that the Secretary of Defense may prescribe by regulation;
(3) in the case of a military installation that is in more than one state, if those states have different blood alcohol content limits under their respective state laws, the Secretary of Defense may select one of the blood alcohol content limits to apply uniformly on that installation.
(e) A member of the militia may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the member of the militia is convicted under (b) of this section and has been previously convicted two or more times within the 10 years preceding the date of the present offense.
(f) Unless otherwise specifically defined or unless the context otherwise requires, in this section,
(1) “blood alcohol content limit” means the amount of alcohol concentration in a person’s blood or breath at which operation or control of a vehicle, aircraft, or vessel is prohibited;
(2) “nonmilitary” means not of the armed forces of the United States or of the militia of a state;
(3) “state” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa;
(4) “United States” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa.
Sec. 26.05.860. Drunkenness and other incapacitating offenses.
(a) A member of the militia, other than a sentinel or lookout, who (1) is found under the influence of alcohol or a controlled substance while on duty, or (2) as a result of the use of any alcoholic beverage or drug, is unable to properly perform the member’s duty may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who, while a prisoner, is drunk or under the influence of a controlled substance other than a controlled substance taken in accordance with a valid prescription may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct
Sec. 26.05.865. Misbehavior of sentinel.
A sentinel or lookout who (1) as a result of the use of any alcoholic beverage or drug, is unable to properly perform the sentinel’s or lookout’s duties, (2) is found sleeping on the sentinel’s or lookout’s post, (3) leaves the sentinel’s or lookout’s post before being regularly relieved, or (4) loiters or wrongfully sits down on post may be punished, if the offense is committed in time of war or emergency as described in AS 26.05.070, by confinement of not more than 10 years, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct, but if the offense is committed at any other time, by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.867. Disrespect toward sentinel or lookout.
A member of the militia who, knowing that another person is a sentinel or lookout, uses wrongful and disrespectful language or behaves in a wrongful and disrespectful manner that is directed toward and within the hearing of the sentinel or lookout while the sentinel or lookout is executing the sentinel or lookout’s duties may be punished by separation with characterization up to dishonorable discharge and by such other punishment, without confinement, as a court-martial may direct.
Sec. 26.05.870. Wrongful use or possession of controlled substances.
(a) A member of the militia who wrongfully uses, possesses, manufactures, distributes, or imports a controlled substance into the customs territory of the United States, exports from the United States in violation of the laws of the United States or the state, or who wrongfully introduces a controlled substance into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces of the United States or the military forces of a state may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the charge is for wrongful use or possession, or by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the charge is for manufacturing, distributing, or importing.
(b) A court-martial may not impose a sentence of confinement under this section if the charge is for use or possession of marijuana or any marijuana derivative or compound.
(c) [Repealed, § 41 ch 85 SLA 2018.]
Sec. 26.05.875. Malingering.
A member of the militia who, for the purpose of avoiding work, duty, or service, (1) feigns illness, physical disablement, mental lapse, or derangement, or (2) intentionally inflicts self-injury may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.880. Riot or breach of peace.
A member of the militia who intentionally causes or wilfully participates in a riot or breach of the peace may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.885. Provoking speeches or gestures.
(a) A member of the militia who uses provoking or reproachful words or gestures toward another member of the militia may be punished as a court-martial may direct.
(b) A court-martial may not impose a sentence of confinement or a discharge under this section.
Sec. 26.05.890. Sexual assault.
(a) A member of the militia who commits any of the following acts is guilty of sexual assault and, except as provided under (f) of this section, shall be punished by separation with characterization dishonorable discharge and may, in addition to separation, be punished by up to 10 years of confinement and by such other punishment as a court-martial may direct:
(1) a sexual act on another person by
(A) threatening or placing another person in fear;
(B) causing bodily harm to another person;
(C) making a fraudulent representation that the sexual act serves a professional purpose;
(D) inducing a belief by any artifice, pretense, or concealment that the person is another person;
(2) a sexual act on another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring;
(3) a sexual act on another person when the other person is incapable of consenting to the sexual act because of
(A) impairment by a drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person;
(B) a mental disease or defect or physical disability, and that condition is known or reasonably should be known by the person.
(b) A member of the militia who commits or causes sexual contact on or by another person, and in doing so would have violated (a) of this section had the sexual contact been a sexual act, is guilty of abusive sexual contact and may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) In a prosecution under this section, in proving that a person made a threat, it is not necessary to prove that the person actually intended to carry out the threat or had the ability to carry out the threat.
(d) An accused may raise any applicable defenses available under this chapter or the Rules for Courts-Martial (Manual for Courts-Martial, United States, as amended). Marriage is not a defense for any conduct at issue in a prosecution under this section.
(e) In a prosecution under this section where consent is at issue,
(1) an expression of lack of consent through words or conduct means there is no consent; lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear may not constitute consent; a current or previous dating, social, or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue may not constitute consent;
(2) a sleeping, unconscious, or incompetent person cannot consent; a person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious; a person cannot consent while under threat or fear or under the circumstances described in (a)(1)(C) or (D) of this section;
(3) lack of consent may be inferred based on the circumstances of the offense; the surrounding circumstances shall be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions.
(f) The convening authority of the court-martial may reduce, commute, or suspend a sentence of separation with characterization dishonorable discharge imposed by a court-martial under (a) of this section to a sentence of separation with characterization bad-conduct discharge if, after sentencing and before the entry of judgment, the accused provides substantial assistance with the investigation or prosecution of another person.
(g) When a person is convicted of an offense under this section that requires the person to register as a sex offender under AS 12.63, the court-martial shall provide the person with information regarding sex offender registration under AS 12.63.010 and, if it can be determined by the court-martial, inform the person whether the conviction will require the person to register for life or a lesser period under AS 12.63.
(h) Unless otherwise specifically defined or unless the context otherwise requires, in this section,
(1) “bodily harm” means any offensive touching of another person, however slight, including any nonconsensual sexual act or nonconsensual sexual contact;
(2) “consent” means a freely given agreement to the conduct at issue by a competent person;
(3) “force” means the use of a weapon, the use of physical strength or violence sufficient to overcome, restrain, or injure a person, or inflicting physical harm sufficient to coerce or compel submission by the victim;
(4) “grievous bodily harm” means serious bodily injury, including fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries; grievous bodily harm does not include minor injuries such as a black eye or a bloody nose;
(5) “sexual act” means
(A) contact between the penis and the vulva, anus, or mouth; in this subparagraph, contact involving the penis occurs upon penetration, however slight;
(B) the penetration, however slight, of the vulva, anus, or mouth of another person by any part of the body or any object, with an intent to abuse, humiliate, harass, or degrade a person or to arouse or gratify the sexual desire of a person;
(6) “sexual contact” means
(A) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of a person, with an intent to abuse, humiliate, or degrade a person;
(B) touching, or causing another person to touch, either directly or through the clothing, a body part of a person, with an intent to arouse or gratify the sexual desire of a person; touching may be accomplished by any part of the body;
(7) “threatening or placing another person in fear” means a communication or action that is of sufficient consequence to cause a reasonable fear that noncompliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action.
Sec. 26.05.893. Prohibited sexual activities with military recruit or trainee by person in position of special trust.
(a) A member of the militia who (1) is an officer, a noncommissioned officer, or a petty officer, (2) is in a training leadership position with respect to a specially protected junior member of the armed forces of the United States or of the militia of the state, and (3) engages in prohibited sexual activity with the specially protected junior member of the armed forces of the United States or of the militia of the state may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who is a military recruiter and engages in prohibited sexual activity with (1) an applicant for military service or (2) a specially protected junior member of the armed forces of the United States or of the militia of the state who is enlisted under a delayed entry program may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) Consent is not a defense in a prosecution under this section.
(d) When a person is convicted of an offense under this section that requires the person to register as a sex offender under AS 12.63, the court-martial shall provide the person with information regarding sex offender registration under AS 12.63.010 and, if it can be determined by the court-martial, inform the person whether the conviction will require the person to register for life or a lesser period under AS 12.63.
Sec. 26.05.895. Stalking.
(a) A member of the militia is guilty of stalking and may be punished by up to three years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the member
(1) wrongfully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm, including sexual assault, to the person or a member of the person’s immediate family;
(2) has knowledge, or should have knowledge, that the specific person will be placed in reasonable fear of death or bodily harm, including sexual assault, to the person or a member of the person’s immediate family;
(3) induces in a specific person reasonable fear of death or bodily harm, including sexual assault, to the person or to a member of the person’s immediate family.
(b) Unless otherwise specifically defined or unless the context otherwise requires, in this section,
(1) “course of conduct” means a repeated maintenance of visual or physical proximity to a specific person or a repeated conveyance of verbal threats, written threats, or threats implied by conduct, or a combination of those threats, directed at or toward a specific person;
(2) “immediate family” means a spouse, parent, child, or sibling of the person, or any other family member, relative, or intimate partner of the person who regularly resides in the household of the person or who, within the six months preceding the commencement of the course of conduct, regularly resided in the household of the person;
(3) “repeated,” with respect to conduct, means two or more occasions of that conduct.
Sec. 26.05.897. Assault.
(a) A member of the militia commits the offense of assault if the person attempts or offers to do bodily harm to another person using unlawful force or violence, whether or not the attempt or offer is consummated. A person who commits assault may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia commits the offense of aggravated assault if the person (1) uses a dangerous weapon or other means or force likely to produce death or grievous bodily harm to commit the offense described in (a) of this section or (2) commits the offense described in (a) of this section and intentionally inflicts grievous bodily harm, with or without a weapon, on another person. A person who commits aggravated assault may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.900. Other sexual misconduct; indecent viewing, visual recording, or broadcasting.
(a) A member of the militia who knowingly commits any of the following acts without legal justification or lawful authorization is guilty of an offense under this section and may be punished by up to seven years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct:
(1) knowingly and wrongfully views the private area of another person, without the other person’s consent and under circumstances in which the other person has a reasonable expectation of privacy;
(2) knowingly and wrongfully photographs, videotapes, films, or records, by any means, the private area of another person without the other person’s consent and under circumstances in which the other person has a reasonable expectation of privacy;
(3) knowingly broadcasts a recording of another person’s private area that the person knows or reasonably should know was made or broadcast
(A) without the other person’s consent; and
(B) under circumstances in which the other person had a reasonable expectation of privacy;
(4) knowingly distributes a recording of another person’s private area that the person knows or reasonably should know was made or distributed
(A) without the other person’s consent; and
(B) under circumstances in which the other person had a reasonable expectation of privacy.
(b) A member of the militia who compels another person to engage in an act of prostitution with another person is guilty of forcible pandering and may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who intentionally exposes, in an indecent manner, the genitalia, anus, buttocks, or female areola or nipple is guilty of indecent exposure and may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(d) When a person is convicted of an offense under this section that requires the offender to register as a sex offender under AS 12.63, the court-martial shall provide the person with information regarding sex offender registration under AS 12.63.010 and, if it can be determined by the court-martial, inform the person whether the conviction will require the person to register for life or a lesser period under AS 12.63.
(e) Unless otherwise specifically defined or unless the context otherwise requires, in this section,
(1) “act of prostitution” means a sexual act or sexual contact as defined in AS 26.05.890 because of which anything of value is given to or received by another person;
(2) “broadcast” means electronically transmitting a visual image with the intent that it be viewed by a person or persons;
(3) “distribute” means delivering to the actual or constructive possession of another, including transmission by electronic means;
(4) “indecent manner” means conduct that amounts to a form of immorality relating to sexual impurity that is grossly vulgar, obscene, and repugnant to common propriety and that tends to excite sexual desire or deprave morals with respect to sexual relations;
(5) “private area” means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple;
(6) “reasonable expectation of privacy” means circumstances in which a reasonable person would believe that the person could disrobe in privacy without being concerned that an image of a private area of the person was being captured or circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public;
(7) “recording” means a still or moving visual image captured or recorded by any means;
(8) “without the other person’s consent” has the meaning given to “without consent” in AS 11.41.470.
Sec. 26.05.905. Larceny and wrongful appropriation.
(a) A member of the militia who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or another person any money, personal property, or article of value with intent permanently to deprive or defraud another person of the use and benefit of the property or to appropriate it for the person’s own use or the use of a person other than the owner steals that property and is guilty of larceny and may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or another person any money, personal property, or article of value with intent temporarily to deprive or defraud another person of the use and benefit of the property or to appropriate it for the person’s own use or the use of a person other than the owner is guilty of wrongful appropriation and may be punished by up to six months of confinement, by separation with characterization up to a bad conduct discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.910. Forgery.
A member of the militia who, with intent to defraud, (1) falsely makes or alters a signature to or a part of any writing that would, if genuine, apparently impose a legal liability on another person or change the legal right or liability of the person to their prejudice, or (2) utters, offers, issues, or transfers that writing, which the person knows to be falsely made or altered, is guilty of forgery and may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.913. Public records offenses.
A member of the militia who (1) wilfully and unlawfully alters, conceals, removes, mutilates, obliterates, or destroys a public record or (2) takes a public record with the intent to alter, conceal, remove, mutilate, obliterate, or destroy the public record may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.915. Making, drawing, or uttering check, draft, or order without sufficient funds.
A member of the militia who makes, draws, utters, or delivers a check, draft, or order for the payment of money on a bank or other depository, knowing at the time that the maker or drawer has not or will not have sufficient funds in, or credit with, the bank or other depository for the payment of that check, draft, or order in full on its presentment, with intent to defraud for the procurement of any article or thing of value or with intent to deceive for the payment of a past due obligation or for another purpose, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct. The making, drawing, uttering, or delivering by a maker or drawer of a check, draft, or order, payment of which is refused by the drawee because of insufficient funds of the maker or drawer in the drawee’s possession or control, is prima facie evidence of the person’s intent to defraud or deceive and of the knowledge of insufficient funds in, or credit with, that bank or other depository, unless the maker or drawer pays the holder the amount due within five days after receiving notice, orally or in writing, that the check, draft, or order was not paid on presentment. In this section, “credit” means an arrangement or understanding, express or implied, with the bank or other depository for the payment of that check, draft, or order.
Sec. 26.05.920. Perjury.
A member of the militia who, in a judicial proceeding or in a course of justice, under lawful oath or in another form allowed by law to be substituted for an oath, wilfully and corruptly gives false testimony material to the issue or matter of inquiry, or who, in a declaration, certificate, verification, or statement under penalty of perjury, subscribes a false statement material to the issue or matter of inquiry is guilty of perjury and may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.925. Fraud against the government.
(a) A member of the militia is guilty of fraud against the government if the member,
(1) knowing it to be false or fraudulent,
(A) makes a claim against the United States, the state, or an officer of the United States or the state; or
(B) presents to a person in the civil or military service of the United States, the state, or an officer of the United States or the state, for approval or payment, a claim against the United States, the state, or an officer of the United States or the state;
(2) for the purpose of obtaining the approval, allowance, or payment of a claim against the United States, the state, or an officer of the United States or the state,
(A) makes or uses a writing or other paper knowing it to contain a false or fraudulent statement;
(B) makes an oath, affirmation or certification to a fact, writing, or other paper knowing the oath, affirmation, or certification to be false; or
(C) forges or counterfeits a signature on a writing or other paper or uses the signature, knowing it to be forged or counterfeited;
(3) having charge, possession, custody, or control of money or other property of the United States or the state, that is furnished or intended for the armed forces of the United States or the militia of the state, knowingly delivers to a person having authority to receive it, any amount of the money or other property less than that for which the member receives a certificate or receipt; or
(4) being authorized to make or deliver any paper certifying the receipt of property of the United States or the state, that is furnished or intended for the armed forces of the United States or the militia of the state, makes or delivers to a person the writing without having full knowledge of the truth of the statements contained in the writing and with intent to defraud the United States or the state.
(b) A person found guilty of fraud against the government may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.930. Conduct unbecoming an officer.
(a) A commissioned officer, warrant officer, cadet, candidate, or midshipman of the militia who is convicted of conduct unbecoming an officer may be punished by separation with characterization up to dishonorable discharge and by such other punishment as a court-martial may direct.
(b) A court-martial may not impose a sentence of confinement under this section.
Sec. 26.05.935. General article.
(a) Although not specifically mentioned in this chapter, all disorders and acts that prejudice good order and discipline in the militia of the state and all conduct of a nature to bring discredit on the militia of the state shall be considered by a court-martial and punished as a court-martial may direct.
(b) A member of the militia who commits an enumerated offense punishable under Article 134, 10 U.S.C. 934 (Uniform Code of Military Justice), except for those enumerated offenses relating to wrongful cohabitation, may, upon conviction, be punished by separation with characterization up to dishonorable discharge and by such other punishment as a court-martial may direct.
(c) A court-martial may not impose a sentence of confinement under (a) or (b) of this section.
(d) When a person is convicted of an enumerated offense under (b) of this section that requires the offender to register as a sex offender under AS 12.63, the court-martial shall provide the person with information regarding sex offender registration under AS 12.63.010 and, if it can be determined by the court-martial, inform the person whether the conviction will require the person to register for life or a lesser period under AS 12.63.
Sec. 26.05.940. Offenses concerning government computers.
(a) A member of the militia who (1) knowingly accesses a government computer with an unauthorized purpose, (2) by accessing the government computer obtains classified information, and (3) with reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation, intentionally communicates, delivers, or transmits the information, or causes the information to be communicated, delivered, or transmitted, to any person who is not entitled to receive the information may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who intentionally accesses a government computer with an unauthorized purpose and by accessing the government computer obtains classified or other protected information from the government computer may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who knowingly causes the transmission of a program, information, code, or command and, as a result of that conduct, intentionally and without authorization causes damage to a government computer may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.945. Breach of medical quarantine.
Article 3. General Provisions.
A member of the militia who is ordered into medical quarantine by a person authorized to issue the quarantine order and who, with knowledge of the quarantine order and the limits imposed under the quarantine order, goes beyond the limits imposed under the quarantine order before the person is released from quarantine by proper authority may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.990. Definitions.
In this chapter, unless the context otherwise requires,
(1) “accuser” means a person who signs and swears to charges, a person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused;
(2) “arrest” means the restraint of a person by an order, not imposed as a punishment for an offense, directing the person to remain within certain specified limits;
(3) “cadet,” “candidate,” or “midshipman” means a person who is enrolled in or attending a state military academy, a regional training institute, or any other formal education program for the purpose of becoming a commissioned officer in the militia of the state;
(4) “classified information” means
(A) information or material that has been determined by an official of the United States or any state under law, an executive order, or regulation to require protection against unauthorized disclosure for reasons of national or state security; and
(B) restricted data, as defined in 42 U.S.C. 2014(y) (Atomic Energy Act of 1954);
(5) “code of military justice” means the provisions of this chapter and the regulations adopted by the adjutant general to implement this chapter;
(6) “commanding officer” or “commander” includes only commissioned officers of the militia of the state and includes officers in charge only when administering a nonjudicial punishment under the code of military justice;
(7) “confinement” means the physical restraint of a person;
(8) “controlled substance” means
(A) opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana;
(B) a compound or derivative of a substance specified in (A) of this paragraph;
(C) a substance not specified in (A) or (B) of this paragraph that is listed on a schedule of controlled substances prescribed by the President of the United States for the purposes of the armed forces of the United States under 10 U.S.C. 801 — 946 (Uniform Code of Military Justice);
(D) a substance not specified in (A) or (B) of this paragraph or on a list prescribed by the President under (C) of this paragraph that is listed in 21 U.S.C. 812, schedules I through V;
(E) an illicit synthetic drug identified in AS 17.21.010;
(9) “convening authority” includes, in addition to the person who convened the court, a commissioned officer commanding for the time being or a successor in command to the convening authority;
(10) “day” means calendar day and is not synonymous with the term “unit training assembly”;
(11) “department” means the Department of Military and Veterans’ Affairs;
(12) “enlisted member” means a person in an enlisted grade;
(13) “military court” means a court-martial;
(14) “military judge” means an official of a general or special court-martial described under AS 26.05.470;
(15) “militia” or “militia of the state” means the Alaska National Guard, the Alaska Naval Militia, and the Alaska State Defense Force;
(16) “national or state security” means the national defense and foreign relations of the United States;
(17) “officer” means a commissioned or warrant officer;
(18) “officer in charge” means a member of the naval militia, United States Navy, United States Marine Corps, or United States Coast Guard designated by the appropriate authority;
(19) “record,” when used in connection with the proceedings of a court-martial, means
(A) an official written transcript, written summary, or other writing relating to the proceedings; or
(B) an official audiotape, videotape, digital image or file, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced;
(20) “reviewing authority” means the Military Appeals Commission and the Alaska supreme court;
(21) “senior force judge advocate” means the senior judge advocate of the commander of the same force of the militia of the state as the accused and who is that commander’s chief legal advisor;
(22) “unit” means a regularly organized body of the militia of the state not larger than a company, a squadron, a division of the naval militia, or a body corresponding to one of them.
Chapter 10. Veterans.
Article 1. Veterans’ Services.
Sec. 26.10.010. Regulations.
The Department of Military and Veterans’ Affairs shall adopt regulations necessary to carry out the purposes of this chapter.
Sec. 26.10.020. Veterans service fund. [Repealed, § 12 ch 42 SLA 1997.]
Sec. 26.10.030. Acceptance of gifts, donations, and grants.
The Department of Military and Veterans’ Affairs may receive gifts, donations, and grants from any person or agency. All gifts, donations, and grants shall be used in accordance with the donor’s instructions.
Sec. 26.10.040. Training in rehabilitation and service work.
The Department of Military and Veterans’ Affairs may approve expenditures by veterans’ organizations and may reimburse them for their expenditures in employing full time service officers, for necessary travel expenses, including travel by service officers outside of the state not more than once each year for purposes of training in veterans’ rehabilitation and service work, and for per diem not exceeding that allowed state employees. The department shall limit payments to veterans’ organizations to an amount that will fairly compensate them for salaries and expenses paid to their full time service officers in performing rehabilitation work for veterans, including the prosecution of their claims and solution of their problems arising out of military service. This service and assistance shall be given to all veterans and their dependents and to all beneficiaries of any military claim and shall include but not be limited to those services now given by the service departments of the respective organizations.
Sec. 26.10.050. Approval of payments.
Article 2. Miscellaneous Provisions.
Payment to a veterans’ organization shall first be approved by the Department of Military and Veterans’ Affairs and so far as possible shall be on an equitable basis for rehabilitation work done.
Sec. 26.10.060. Extension of Universal Military Training and Service Act provisions to Alaska employees.
(a) The provisions of 50 U.S.C. App. 459 (sec. 9, Universal Military Training and Service Act), as amended, are extended to this state and its political subdivisions.
(b) In this section, “veteran” means a person
(1) subject to the Universal Military Training and Service Act; or
(2) who served in the Alaska Territorial Guard.
Sec. 26.10.065. Disposition of remains of state resident armed forces personnel on duty status.
(a) Except as provided in (b) of this section, if a state resident who is a member of the armed forces has executed the United States Department of Defense Military Record of Emergency Data Form (DD Form 93), or its successor form, to serve as a record of emergency data and, on that form, has designated a person who is authorized to direct the disposition of the member’s remains if the member dies while in a duty status as described in 10 U.S.C. 1481, notwithstanding any other provision of law, the person authorized to direct the disposition of remains on the executed form has the right to make the decisions concerning the disposition of the member’s remains.
(b) If a state resident who is a member of the United States Coast Guard has executed the United States Coast Guard Designation of Beneficiaries and Record of Emergency Data Form (CG-2020D), or its successor form, to serve as a record of emergency data and, on that form, has designated a person who is authorized to direct the disposition of the member’s remains if the member dies while in a duty status as described in 10 U.S.C. 1481, notwithstanding any other provision of law, the person authorized to direct the disposition of remains on the executed form has the right to make the decisions concerning the disposition of the member’s remains.
Sec. 26.10.070. Record of veterans of the armed forces of the United States.
(a) A veteran may record without fee the veteran’s armed forces report of separation at a recorder’s office of the Department of Natural Resources.
(b) [Repealed, § 2 ch 25 SLA 2001.]
Sec. 26.10.080. Death gratuity.
(a) The Department of Military and Veterans’ Affairs shall pay, upon application, a death gratuity in the amount of $750 to the surviving spouse of a qualified veteran who was a resident of the state at the time of death. If the veteran has no surviving spouse, the gratuity shall be paid to the personal representative of the veteran. A veteran is qualified under this subsection if the veteran’s
(1) burial occurred in the state on or after May 13, 1984; or
(2) death occurred on or after September 19, 1990.
(b) A death gratuity may be paid for a veteran otherwise eligible under (a) of this section even if the veteran died while temporarily absent from the state.
(c) The Department of Military and Veterans’ Affairs may not pay a death gratuity unless the veteran for whom payment is made received an honorable discharge or a general discharge under honorable conditions.
(d) In this section,
(1) “personal representative” includes administrator, executor, special administrator, successor personal representative, and persons who perform substantially the same function under the law governing their status;
(2) “veteran” means
(A) a person who served in a branch of the armed services of the United States
(i) who at the time of entry into the service was a resident of the territory or state, who had been a resident for not less than one year immediately before entry into the service, and who returned to the territory or state within one year after discharge as a resident with the intention of remaining in the territory or state; or
(ii) who was a resident of the state for not less than one year immediately preceding the time of death; or
(B) a person who served in the Alaska Territorial Guard, the Alaska Army National Guard, the Alaska Air National Guard, or the Alaska Naval Militia, or who served in a reserve unit of the United States armed forces in Alaska if the reserve unit required a minimum of one weekend of duty each month and 15 consecutive days of active duty training each year for not less than three years.
Sec. 26.10.090. Alaska Territorial Guard veterans included.
In this chapter, except where otherwise indicated, “veteran” includes a person who served in the Alaska Territorial Guard.
Chapter 15. Veterans’ Loans.
Sec. 26.15.010. Powers and duties of Department of Commerce, Community, and Economic Development with respect to veterans’ loans.
(a) The Department of Commerce, Community, and Economic Development shall administer the laws and regulations relating to the veterans’ loan program, adopt new regulations, and recommend legislation.
(b) The department shall obtain the guarantee of the United States under the Servicemen’s Re-Adjustment Act on loans as prescribed by regulations of the department. Under regulations of the department, the department may guarantee or insure loans or portions of loans not to exceed 90 percent as may be obtainable by veterans having the qualifications of beneficiaries under this chapter from any person, firm, corporation, bank, savings and loan association, or an agency or instrumentality of the United States, and may grant participating portions of the loans.
(c) Under regulations of the department, the department may grant loans to two or more qualified veterans to engage in the same business, as a partner or joint venturer with one or more other persons. However, if one or more veterans engage as a partner in a business or joint venture with a nonveteran, the department shall require the nonveteran or nonveterans to contribute equally to the capital assets of the business or joint venture.
(d) Under regulations of the department, the department may enter into contracts with insurance companies for mortgage insurance coverage on veteran loans.
Sec. 26.15.020. Validation of certain documents.
The deeds, mortgages, assignments, or other documents made, executed, and delivered in conformity with the provisions of this chapter and as otherwise required by law, in which the designation “Veterans’ Affairs Commission” appears, whether as grantor, grantee, mortgagee, assignor, assignee, or otherwise, are validated and confirmed, and all obligations incurred under the provisions of any such deed, mortgage, assignment, or other instrument by the Territory of Alaska, the Alaska World War II Veterans’ Board, or the commissioner of veterans’ affairs, in an official capacity, are hereby declared to be good, valid, and subsisting obligations, and the covenants, conditions, and provisions, if any, prescribed to be kept, paid, performed, or observed, imposed upon any party described in any such instrument shall be discharged as herein set forth, the fact that the officer executing and delivering any such instrument added to the officer’s signature the description “Veterans’ Affairs Commission,” notwithstanding.
(a) A member of the militia who wrongfully and falsely makes, alters, counterfeits, or tampers with a military or official pass, permit, discharge certificate, or identification card may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who wrongfully sells, gives, lends, or disposes of a false or unauthorized military or official pass, permit, discharge certificate, or identification card, knowing that the pass, permit, discharge certificate, or identification card is false or unauthorized, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who wrongfully uses or possesses a false or unauthorized military or official pass, permit, discharge certificate, or identification card, knowing that the pass, permit, discharge certificate, or identification card is false or unauthorized, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.740. Missing movement; jumping from vessel.
A member of the militia who, (1) through neglect or design, misses the movement of a ship, aircraft, or unit with which the member is required, in the course of duty, to move, or (2) intentionally or wrongfully jumps into the water from a vessel in use by the armed forces may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.745. Contempt toward officials.
(a) A commissioned officer of the militia who uses contemptuous words against the President or Vice President of the United States, the United States Congress, the United States Secretary of Defense, the United States Secretary of Homeland Security, the secretary of a military department of the United States, or the governor or legislature of this state may be punished by separation with characterization up to dishonorable discharge and by such other punishment as a court-martial may direct.
(b) A court-martial may not impose a sentence of confinement under this section.
Sec. 26.05.750. Disrespect toward superior commissioned officer.
(a) A member of the militia who behaves with disrespect toward the member’s superior commissioned officer may be punished by separation with characterization up to dishonorable discharge and by such other punishment as a court-martial may direct.
(b) A court-martial may not impose a sentence of confinement under this section.
Sec. 26.05.755. Assaulting or wilfully disobeying superior commissioned officer.
A member of the militia who (1) strikes the member’s superior commissioned officer or draws or lifts up any weapon or offers any violence against the superior officer while the superior officer is in the execution of the superior officer’s office, or (2) wilfully disobeys a lawful command of the member’s superior commissioned officer may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.760. Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer.
A warrant officer or enlisted member of the militia who (1) strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while the officer is in the execution of the officer’s office, (2) wilfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer, or (3) treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer while the officer is in the execution of the officer’s office may be punished by up to two years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.765. Failure to obey order or regulation.
Any member of the militia who (1) violates or fails to obey a lawful general order or regulation, (2) having knowledge of any other lawful order issued by a member of the militia of the state that the member has a duty to obey, fails to obey the order, or (3) is derelict in the performance of the member’s duties may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.767. Impersonation of officer, noncommissioned officer, petty officer, agent, or official.
(a) A member of the militia who wrongfully and wilfully impersonates (1) an officer, noncommissioned officer, or petty officer, (2) an agent of superior authority of one of the armed forces of the United States or of the militia of the state, or (3) an official of a government shall be punished as a court-martial may direct.
(b) A member of the militia who wrongfully, wilfully, and with intent to defraud impersonates (1) an officer, noncommissioned officer, or petty officer, (2) an agent of superior authority of one of the armed forces of the United States or of the militia of the state, or (3) an official of a government may be punished by up to three years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who wrongfully, wilfully, and without intent to defraud impersonates an official of a government by committing an act that exercises or asserts the authority of the office that the person claims to have may be punished by up to six months of confinement, by separation with characterization up to bad-conduct discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.768. Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button.
A member of the militia who wears on the member’s uniform or civilian clothing an insignia, decoration, badge, ribbon, device, or lapel button that the member is not authorized to wear may be punished by up to six months of confinement, by separation with characterization up to bad-conduct discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.770. Cruelty and maltreatment.
A member of the militia who is guilty of cruelty toward, or oppression or maltreatment of, another person subject to the member’s orders may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.775. Mutiny or sedition.
(a) A member of the militia is guilty of mutiny if the member, with intent to usurp or override lawful military authority, refuses, in concert with another person, to obey orders or otherwise do the member’s duty or creates violence or a disturbance.
(b) A member of the militia is guilty of sedition if the member, with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with another person, revolt, violence, or other disturbance against the authority.
(c) A member of the militia is guilty of a failure to suppress or report a mutiny or sedition if the member fails to do the member’s utmost to prevent and suppress a mutiny or sedition being committed in the member’s presence or fails to take all reasonable means to inform the member’s superior commissioned officer or commanding officer of a mutiny or sedition that the member knows or has reason to believe is taking place.
(d) A member who is found guilty of mutiny, sedition, or failure to suppress or report a mutiny or sedition under this section may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.780. Resistance, flight, breach of arrest, and escape.
A member of the militia who (1) resists apprehension, (2) flees from apprehension, (3) breaks arrest, or (4) escapes from custody or confinement may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.785. Releasing prisoner without proper authority; drinking or using drugs with prisoner.
(a) A member of the militia who, without proper authority, releases a prisoner committed to the member’s charge or, through neglect or design, suffers a prisoner to escape may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law.
(b) A member of the militia who unlawfully drinks an alcoholic beverage with a prisoner or unlawfully uses a drug with a prisoner may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-marshal may direct, whether or not the prisoner was committed in strict compliance with law.
Sec. 26.05.790. Unlawful detention.
A member of the militia who, except as provided by law or regulation, apprehends, arrests, or confines another person may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.793. Wrongful interference with adverse administrative proceeding.
A member of the militia who, having reason to believe that an adverse administrative proceeding is pending against a person subject to this chapter, wrongfully acts with the intent to influence, impede, or obstruct the conduct of the proceeding or otherwise obstruct the due administration of justice may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.795. Noncompliance with procedural rules.
A member of the militia who knowingly and intentionally
(1) is responsible for unnecessary delay in the disposition of the case of another person accused of an offense under this chapter may be punished by up to six months of confinement, by separation with characterization up to a bad conduct discharge, and by such other punishment as a court-martial may direct; or
(2) fails to enforce or comply with a provision of this chapter regulating the proceedings before, during, or after trial of an accused may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.796. Wrongful refusal to testify.
A member of the militia who, during a preliminary hearing or in the presence of a court-martial, board of officers, military commission, court of inquiry, or officer taking a deposition of or for the state, wrongfully refuses to qualify as a witness or answer a question after having been directed to do so by the person presiding over the proceeding may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.798. Retaliation.
A member of the militia who, with the intent to retaliate against a person for reporting or planning to report a criminal offense or for making or planning to make a protected communication, or who, with the intent to discourage any person from reporting a criminal offense or from making or planning to make a protected communication, (1) wrongfully takes or threatens to take an adverse personnel action against a person or (2) wrongfully withholds or threatens to withhold a favorable personnel action with respect to a person may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.800. Misbehavior before the enemy.
(a) A member of the militia is guilty of misbehavior before the enemy if the member is before or in the presence of the enemy, or is facing a threat as described in AS 26.05.070, and
(1) runs away;
(2) shamefully abandons, surrenders, or delivers up a command, unit, place, or military property that the member has a duty to defend;
(3) through disobedience, neglect, or intentional misconduct, endangers the safety of the command, unit, place, or military property;
(4) casts away the member’s arms or ammunition;
(5) engages in cowardly conduct;
(6) quits a place of duty to plunder or pillage;
(7) causes false alarms in a command, unit, or place under control of the armed forces of the United States or the militia of the state;
(8) wilfully fails to do the utmost to encounter, engage, capture, or destroy enemy troops, combatants, vessels, aircraft, or other thing that the member has a duty to encounter, engage, capture, or destroy; or
(9) does not afford all practicable relief and assistance to the troops, combatants, vessels, or aircraft of the armed forces of the United States or an ally of the United States, this state, or another state when engaged in battle.
(b) A member found guilty of misbehavior before the enemy under this section may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.805. Subordinate compelling surrender.
A member of the militia who compels or attempts to compel the commander of the militia of this state or of any other state, of a place, a vessel, an aircraft, or another military property, or of a body of members of the armed forces to give it up to an enemy or to abandon it in the face of a threat described in AS 26.05.070, or who strikes the colors or flag to an enemy without proper authority, may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.810. Improper use of countersign.
A member of the militia who, in time of war, or emergency as described in AS 26.05.070, discloses the parole or countersign to a person not entitled to receive it or who gives to another person who is entitled to receive and use the parole or countersign a different parole or countersign from that which, to the person’s knowledge, the member was authorized and required to give may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.815. Forcing a safeguard.
A member of the militia who forces a safeguard may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.820. Captured or abandoned property.
(a) A member of the militia shall secure all public property taken for the service of the United States or the state and shall give notice and turn over to the proper authority without delay all captured or abandoned property in the member’s possession, custody, or control.
(b) A member of the militia who
(1) fails to carry out the duties prescribed in (a) of this section and buys, sells, trades, or in any way deals in or disposes of taken, captured, or abandoned property, as a result of which the member receives or expects to receive any profit, benefit, or advantage to the member or another person directly or indirectly connected with the member may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct; or
(2) engages in looting or pillaging may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.825. Aiding the enemy.
A member of the militia who (1) aids or attempts to aid the enemy or a hostile individual or group as described in AS 26.05.070 with arms, ammunition, supplies, money, or other things, or (2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with, the enemy or hostile individual or group, either directly or indirectly, may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.830. Misconduct as prisoner.
A member of the militia who, while in the hands of the enemy or a hostile individual or group as described in AS 26.05.070, (1) for the purpose of securing favorable treatment by the person’s captors, acts without proper authority in a manner contrary to law, custom, or regulation, to the detriment of other persons of whatever nationality held by the enemy or hostile individual or group as civilian or military prisoners, or (2) while in a position of authority over a person, maltreats the person without justifiable cause may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.833. Offenses against correctional custody and restriction.
(a) A member of the militia who (1) is placed in correctional custody by a person authorized to do so, (2) is placed under physical restraint while in correctional custody, and (3) escapes from the physical restraint before the member is released from physical restraint by proper authority may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who (1) is placed in correctional custody by a person authorized to do so, (2) is placed under restraint other than physical restraint while in correctional custody, and (3) goes beyond the limits of the restraint before the member is released from or relieved of the restraint by proper authority may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who (1) is ordered to be restricted to certain limits by a person authorized to do so and (2) with knowledge of the limits of the restriction, goes beyond the limits before the member is released from the limitations by proper authority may be punished by up to six months of confinement, by separation with characterization up to bad-conduct discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.835. False official statements or oaths.
(a) A member of the militia who, with intent to deceive, signs a false record, return, regulation, order, or other official document made in the line of duty, knowing it to be false, or makes a false official statement in the line of duty, knowing it to be false, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who (1) takes an oath that is in a matter in which the oath is required or authorized by law and that is administered by a person who has the authority to administer the oath and (2) makes or subscribes to a statement that is false and that the person does not believe to be true at the time the person takes the oath may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.840. Military property; loss, damage, destruction, or wrongful disposition.
A member of the militia who, without proper authority, (1) sells or otherwise disposes of, (2) wilfully or through neglect damages, destroys, or loses, or (3) wilfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of, military property of the United States or of any state, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.845. Property other than military property; waste, spoilage, or destruction.
A member of the militia who wilfully or recklessly wastes, spoils, or otherwise wilfully and wrongly destroys or damages any property other than military property of the United States or of any state may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.850. Improper hazarding of vehicle, aircraft, or vessel.
(a) A member of the militia who wilfully and wrongfully hazards or suffers to be hazarded a vehicle, aircraft, or vessel of the armed forces of the United States or the militia of the state may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who negligently hazards or suffers to be hazarded a vehicle, aircraft, or vessel of the armed forces of the United States or the militia of the state may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.855. Drunken, impaired, or reckless operation of a vehicle, aircraft, or vessel.
(a) A member of the militia who operates or physically controls a nonmilitary vehicle, aircraft, or vessel in a negligent or reckless manner may be punished by separation with characterization up to dishonorable discharge and by such other punishment as a court-martial may direct if the charge is for negligent operation or control, or by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the charge is for reckless operation or control. A court-martial may not impose a sentence of confinement under this subsection if the charge is for negligent operation or control.
(b) A member of the militia who (1) operates or physically controls a nonmilitary vehicle, aircraft, or vessel while impaired by a controlled substance, or (2) operates or is in actual physical control of a nonmilitary vehicle, aircraft, or vessel while under the influence of alcohol or when the alcohol concentration in the person’s blood or breath is equal to or exceeds the applicable limit under (d) of this section may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct, or under (e) of this section if the member is not in active duty status at the time of the offense, or by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the member is in active duty status at the time of the offense.
(c) A member of the militia who (1) operates or physically controls a vehicle, aircraft, or vessel of the armed forces of the United States or the militia of a state in a negligent or reckless manner or while impaired by a controlled substance, or (2) operates or is in actual physical control of a vehicle, aircraft, or vessel of the armed forces of the United States or the militia of a state while under the influence of alcohol or when the alcohol concentration in the person’s blood or breath is equal to or exceeds the applicable limit under (d) of this section may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(d) For purposes of (b) and (c) of this section,
(1) in the case of the operation or control of a vehicle, aircraft, or vessel in the United States, the applicable limit on the alcohol concentration in a person’s blood or breath is the lesser of
(A) the blood alcohol content limit under the law of the state in which the conduct occurred, except as provided under (3) of this subsection for conduct on a military installation that is in more than one state; and
(B) the blood alcohol content limit under AS 28.35.030;
(2) in the case of the operation or control of a vehicle, aircraft, or vessel outside the United States, the applicable blood alcohol content limit is 0.10 grams of alcohol for each 100 milliliters of blood with respect to alcohol concentration in a person’s blood and is 0.10 grams of alcohol for each 210 liters of breath with respect to alcohol concentration in a person’s breath, as shown by chemical analysis or a lower limit that the Secretary of Defense may prescribe by regulation;
(3) in the case of a military installation that is in more than one state, if those states have different blood alcohol content limits under their respective state laws, the Secretary of Defense may select one of the blood alcohol content limits to apply uniformly on that installation.
(e) A member of the militia may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the member of the militia is convicted under (b) of this section and has been previously convicted two or more times within the 10 years preceding the date of the present offense.
(f) Unless otherwise specifically defined or unless the context otherwise requires, in this section,
(1) “blood alcohol content limit” means the amount of alcohol concentration in a person’s blood or breath at which operation or control of a vehicle, aircraft, or vessel is prohibited;
(2) “nonmilitary” means not of the armed forces of the United States or of the militia of a state;
(3) “state” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa;
(4) “United States” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa.
Sec. 26.05.860. Drunkenness and other incapacitating offenses.
(a) A member of the militia, other than a sentinel or lookout, who (1) is found under the influence of alcohol or a controlled substance while on duty, or (2) as a result of the use of any alcoholic beverage or drug, is unable to properly perform the member’s duty may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who, while a prisoner, is drunk or under the influence of a controlled substance other than a controlled substance taken in accordance with a valid prescription may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct
Sec. 26.05.865. Misbehavior of sentinel.
A sentinel or lookout who (1) as a result of the use of any alcoholic beverage or drug, is unable to properly perform the sentinel’s or lookout’s duties, (2) is found sleeping on the sentinel’s or lookout’s post, (3) leaves the sentinel’s or lookout’s post before being regularly relieved, or (4) loiters or wrongfully sits down on post may be punished, if the offense is committed in time of war or emergency as described in AS 26.05.070, by confinement of not more than 10 years, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct, but if the offense is committed at any other time, by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.867. Disrespect toward sentinel or lookout.
A member of the militia who, knowing that another person is a sentinel or lookout, uses wrongful and disrespectful language or behaves in a wrongful and disrespectful manner that is directed toward and within the hearing of the sentinel or lookout while the sentinel or lookout is executing the sentinel or lookout’s duties may be punished by separation with characterization up to dishonorable discharge and by such other punishment, without confinement, as a court-martial may direct.
Sec. 26.05.870. Wrongful use or possession of controlled substances.
(a) A member of the militia who wrongfully uses, possesses, manufactures, distributes, or imports a controlled substance into the customs territory of the United States, exports from the United States in violation of the laws of the United States or the state, or who wrongfully introduces a controlled substance into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces of the United States or the military forces of a state may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the charge is for wrongful use or possession, or by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the charge is for manufacturing, distributing, or importing.
(b) A court-martial may not impose a sentence of confinement under this section if the charge is for use or possession of marijuana or any marijuana derivative or compound.
(c) [Repealed, § 41 ch 85 SLA 2018.]
Sec. 26.05.875. Malingering.
A member of the militia who, for the purpose of avoiding work, duty, or service, (1) feigns illness, physical disablement, mental lapse, or derangement, or (2) intentionally inflicts self-injury may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.880. Riot or breach of peace.
A member of the militia who intentionally causes or wilfully participates in a riot or breach of the peace may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.885. Provoking speeches or gestures.
(a) A member of the militia who uses provoking or reproachful words or gestures toward another member of the militia may be punished as a court-martial may direct.
(b) A court-martial may not impose a sentence of confinement or a discharge under this section.
Sec. 26.05.890. Sexual assault.
(a) A member of the militia who commits any of the following acts is guilty of sexual assault and, except as provided under (f) of this section, shall be punished by separation with characterization dishonorable discharge and may, in addition to separation, be punished by up to 10 years of confinement and by such other punishment as a court-martial may direct:
(1) a sexual act on another person by
(A) threatening or placing another person in fear;
(B) causing bodily harm to another person;
(C) making a fraudulent representation that the sexual act serves a professional purpose;
(D) inducing a belief by any artifice, pretense, or concealment that the person is another person;
(2) a sexual act on another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring;
(3) a sexual act on another person when the other person is incapable of consenting to the sexual act because of
(A) impairment by a drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person;
(B) a mental disease or defect or physical disability, and that condition is known or reasonably should be known by the person.
(b) A member of the militia who commits or causes sexual contact on or by another person, and in doing so would have violated (a) of this section had the sexual contact been a sexual act, is guilty of abusive sexual contact and may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) In a prosecution under this section, in proving that a person made a threat, it is not necessary to prove that the person actually intended to carry out the threat or had the ability to carry out the threat.
(d) An accused may raise any applicable defenses available under this chapter or the Rules for Courts-Martial (Manual for Courts-Martial, United States, as amended). Marriage is not a defense for any conduct at issue in a prosecution under this section.
(e) In a prosecution under this section where consent is at issue,
(1) an expression of lack of consent through words or conduct means there is no consent; lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear may not constitute consent; a current or previous dating, social, or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue may not constitute consent;
(2) a sleeping, unconscious, or incompetent person cannot consent; a person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious; a person cannot consent while under threat or fear or under the circumstances described in (a)(1)(C) or (D) of this section;
(3) lack of consent may be inferred based on the circumstances of the offense; the surrounding circumstances shall be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions.
(f) The convening authority of the court-martial may reduce, commute, or suspend a sentence of separation with characterization dishonorable discharge imposed by a court-martial under (a) of this section to a sentence of separation with characterization bad-conduct discharge if, after sentencing and before the entry of judgment, the accused provides substantial assistance with the investigation or prosecution of another person.
(g) When a person is convicted of an offense under this section that requires the person to register as a sex offender under AS 12.63, the court-martial shall provide the person with information regarding sex offender registration under AS 12.63.010 and, if it can be determined by the court-martial, inform the person whether the conviction will require the person to register for life or a lesser period under AS 12.63.
(h) Unless otherwise specifically defined or unless the context otherwise requires, in this section,
(1) “bodily harm” means any offensive touching of another person, however slight, including any nonconsensual sexual act or nonconsensual sexual contact;
(2) “consent” means a freely given agreement to the conduct at issue by a competent person;
(3) “force” means the use of a weapon, the use of physical strength or violence sufficient to overcome, restrain, or injure a person, or inflicting physical harm sufficient to coerce or compel submission by the victim;
(4) “grievous bodily harm” means serious bodily injury, including fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries; grievous bodily harm does not include minor injuries such as a black eye or a bloody nose;
(5) “sexual act” means
(A) contact between the penis and the vulva, anus, or mouth; in this subparagraph, contact involving the penis occurs upon penetration, however slight;
(B) the penetration, however slight, of the vulva, anus, or mouth of another person by any part of the body or any object, with an intent to abuse, humiliate, harass, or degrade a person or to arouse or gratify the sexual desire of a person;
(6) “sexual contact” means
(A) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of a person, with an intent to abuse, humiliate, or degrade a person;
(B) touching, or causing another person to touch, either directly or through the clothing, a body part of a person, with an intent to arouse or gratify the sexual desire of a person; touching may be accomplished by any part of the body;
(7) “threatening or placing another person in fear” means a communication or action that is of sufficient consequence to cause a reasonable fear that noncompliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action.
Sec. 26.05.893. Prohibited sexual activities with military recruit or trainee by person in position of special trust.
(a) A member of the militia who (1) is an officer, a noncommissioned officer, or a petty officer, (2) is in a training leadership position with respect to a specially protected junior member of the armed forces of the United States or of the militia of the state, and (3) engages in prohibited sexual activity with the specially protected junior member of the armed forces of the United States or of the militia of the state may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who is a military recruiter and engages in prohibited sexual activity with (1) an applicant for military service or (2) a specially protected junior member of the armed forces of the United States or of the militia of the state who is enlisted under a delayed entry program may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) Consent is not a defense in a prosecution under this section.
(d) When a person is convicted of an offense under this section that requires the person to register as a sex offender under AS 12.63, the court-martial shall provide the person with information regarding sex offender registration under AS 12.63.010 and, if it can be determined by the court-martial, inform the person whether the conviction will require the person to register for life or a lesser period under AS 12.63.
Sec. 26.05.895. Stalking.
(a) A member of the militia is guilty of stalking and may be punished by up to three years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct if the member
(1) wrongfully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm, including sexual assault, to the person or a member of the person’s immediate family;
(2) has knowledge, or should have knowledge, that the specific person will be placed in reasonable fear of death or bodily harm, including sexual assault, to the person or a member of the person’s immediate family;
(3) induces in a specific person reasonable fear of death or bodily harm, including sexual assault, to the person or to a member of the person’s immediate family.
(b) Unless otherwise specifically defined or unless the context otherwise requires, in this section,
(1) “course of conduct” means a repeated maintenance of visual or physical proximity to a specific person or a repeated conveyance of verbal threats, written threats, or threats implied by conduct, or a combination of those threats, directed at or toward a specific person;
(2) “immediate family” means a spouse, parent, child, or sibling of the person, or any other family member, relative, or intimate partner of the person who regularly resides in the household of the person or who, within the six months preceding the commencement of the course of conduct, regularly resided in the household of the person;
(3) “repeated,” with respect to conduct, means two or more occasions of that conduct.
Sec. 26.05.897. Assault.
(a) A member of the militia commits the offense of assault if the person attempts or offers to do bodily harm to another person using unlawful force or violence, whether or not the attempt or offer is consummated. A person who commits assault may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia commits the offense of aggravated assault if the person (1) uses a dangerous weapon or other means or force likely to produce death or grievous bodily harm to commit the offense described in (a) of this section or (2) commits the offense described in (a) of this section and intentionally inflicts grievous bodily harm, with or without a weapon, on another person. A person who commits aggravated assault may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.900. Other sexual misconduct; indecent viewing, visual recording, or broadcasting.
(a) A member of the militia who knowingly commits any of the following acts without legal justification or lawful authorization is guilty of an offense under this section and may be punished by up to seven years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct:
(1) knowingly and wrongfully views the private area of another person, without the other person’s consent and under circumstances in which the other person has a reasonable expectation of privacy;
(2) knowingly and wrongfully photographs, videotapes, films, or records, by any means, the private area of another person without the other person’s consent and under circumstances in which the other person has a reasonable expectation of privacy;
(3) knowingly broadcasts a recording of another person’s private area that the person knows or reasonably should know was made or broadcast
(A) without the other person’s consent; and
(B) under circumstances in which the other person had a reasonable expectation of privacy;
(4) knowingly distributes a recording of another person’s private area that the person knows or reasonably should know was made or distributed
(A) without the other person’s consent; and
(B) under circumstances in which the other person had a reasonable expectation of privacy.
(b) A member of the militia who compels another person to engage in an act of prostitution with another person is guilty of forcible pandering and may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who intentionally exposes, in an indecent manner, the genitalia, anus, buttocks, or female areola or nipple is guilty of indecent exposure and may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(d) When a person is convicted of an offense under this section that requires the offender to register as a sex offender under AS 12.63, the court-martial shall provide the person with information regarding sex offender registration under AS 12.63.010 and, if it can be determined by the court-martial, inform the person whether the conviction will require the person to register for life or a lesser period under AS 12.63.
(e) Unless otherwise specifically defined or unless the context otherwise requires, in this section,
(1) “act of prostitution” means a sexual act or sexual contact as defined in AS 26.05.890 because of which anything of value is given to or received by another person;
(2) “broadcast” means electronically transmitting a visual image with the intent that it be viewed by a person or persons;
(3) “distribute” means delivering to the actual or constructive possession of another, including transmission by electronic means;
(4) “indecent manner” means conduct that amounts to a form of immorality relating to sexual impurity that is grossly vulgar, obscene, and repugnant to common propriety and that tends to excite sexual desire or deprave morals with respect to sexual relations;
(5) “private area” means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple;
(6) “reasonable expectation of privacy” means circumstances in which a reasonable person would believe that the person could disrobe in privacy without being concerned that an image of a private area of the person was being captured or circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public;
(7) “recording” means a still or moving visual image captured or recorded by any means;
(8) “without the other person’s consent” has the meaning given to “without consent” in AS 11.41.470.
Sec. 26.05.905. Larceny and wrongful appropriation.
(a) A member of the militia who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or another person any money, personal property, or article of value with intent permanently to deprive or defraud another person of the use and benefit of the property or to appropriate it for the person’s own use or the use of a person other than the owner steals that property and is guilty of larceny and may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or another person any money, personal property, or article of value with intent temporarily to deprive or defraud another person of the use and benefit of the property or to appropriate it for the person’s own use or the use of a person other than the owner is guilty of wrongful appropriation and may be punished by up to six months of confinement, by separation with characterization up to a bad conduct discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.910. Forgery.
A member of the militia who, with intent to defraud, (1) falsely makes or alters a signature to or a part of any writing that would, if genuine, apparently impose a legal liability on another person or change the legal right or liability of the person to their prejudice, or (2) utters, offers, issues, or transfers that writing, which the person knows to be falsely made or altered, is guilty of forgery and may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.913. Public records offenses.
A member of the militia who (1) wilfully and unlawfully alters, conceals, removes, mutilates, obliterates, or destroys a public record or (2) takes a public record with the intent to alter, conceal, remove, mutilate, obliterate, or destroy the public record may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.915. Making, drawing, or uttering check, draft, or order without sufficient funds.
A member of the militia who makes, draws, utters, or delivers a check, draft, or order for the payment of money on a bank or other depository, knowing at the time that the maker or drawer has not or will not have sufficient funds in, or credit with, the bank or other depository for the payment of that check, draft, or order in full on its presentment, with intent to defraud for the procurement of any article or thing of value or with intent to deceive for the payment of a past due obligation or for another purpose, may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct. The making, drawing, uttering, or delivering by a maker or drawer of a check, draft, or order, payment of which is refused by the drawee because of insufficient funds of the maker or drawer in the drawee’s possession or control, is prima facie evidence of the person’s intent to defraud or deceive and of the knowledge of insufficient funds in, or credit with, that bank or other depository, unless the maker or drawer pays the holder the amount due within five days after receiving notice, orally or in writing, that the check, draft, or order was not paid on presentment. In this section, “credit” means an arrangement or understanding, express or implied, with the bank or other depository for the payment of that check, draft, or order.
Sec. 26.05.920. Perjury.
A member of the militia who, in a judicial proceeding or in a course of justice, under lawful oath or in another form allowed by law to be substituted for an oath, wilfully and corruptly gives false testimony material to the issue or matter of inquiry, or who, in a declaration, certificate, verification, or statement under penalty of perjury, subscribes a false statement material to the issue or matter of inquiry is guilty of perjury and may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.925. Fraud against the government.
(a) A member of the militia is guilty of fraud against the government if the member,
(1) knowing it to be false or fraudulent,
(A) makes a claim against the United States, the state, or an officer of the United States or the state; or
(B) presents to a person in the civil or military service of the United States, the state, or an officer of the United States or the state, for approval or payment, a claim against the United States, the state, or an officer of the United States or the state;
(2) for the purpose of obtaining the approval, allowance, or payment of a claim against the United States, the state, or an officer of the United States or the state,
(A) makes or uses a writing or other paper knowing it to contain a false or fraudulent statement;
(B) makes an oath, affirmation or certification to a fact, writing, or other paper knowing the oath, affirmation, or certification to be false; or
(C) forges or counterfeits a signature on a writing or other paper or uses the signature, knowing it to be forged or counterfeited;
(3) having charge, possession, custody, or control of money or other property of the United States or the state, that is furnished or intended for the armed forces of the United States or the militia of the state, knowingly delivers to a person having authority to receive it, any amount of the money or other property less than that for which the member receives a certificate or receipt; or
(4) being authorized to make or deliver any paper certifying the receipt of property of the United States or the state, that is furnished or intended for the armed forces of the United States or the militia of the state, makes or delivers to a person the writing without having full knowledge of the truth of the statements contained in the writing and with intent to defraud the United States or the state.
(b) A person found guilty of fraud against the government may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.930. Conduct unbecoming an officer.
(a) A commissioned officer, warrant officer, cadet, candidate, or midshipman of the militia who is convicted of conduct unbecoming an officer may be punished by separation with characterization up to dishonorable discharge and by such other punishment as a court-martial may direct.
(b) A court-martial may not impose a sentence of confinement under this section.
Sec. 26.05.935. General article.
(a) Although not specifically mentioned in this chapter, all disorders and acts that prejudice good order and discipline in the militia of the state and all conduct of a nature to bring discredit on the militia of the state shall be considered by a court-martial and punished as a court-martial may direct.
(b) A member of the militia who commits an enumerated offense punishable under Article 134, 10 U.S.C. 934 (Uniform Code of Military Justice), except for those enumerated offenses relating to wrongful cohabitation, may, upon conviction, be punished by separation with characterization up to dishonorable discharge and by such other punishment as a court-martial may direct.
(c) A court-martial may not impose a sentence of confinement under (a) or (b) of this section.
(d) When a person is convicted of an enumerated offense under (b) of this section that requires the offender to register as a sex offender under AS 12.63, the court-martial shall provide the person with information regarding sex offender registration under AS 12.63.010 and, if it can be determined by the court-martial, inform the person whether the conviction will require the person to register for life or a lesser period under AS 12.63.
Sec. 26.05.940. Offenses concerning government computers.
(a) A member of the militia who (1) knowingly accesses a government computer with an unauthorized purpose, (2) by accessing the government computer obtains classified information, and (3) with reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation, intentionally communicates, delivers, or transmits the information, or causes the information to be communicated, delivered, or transmitted, to any person who is not entitled to receive the information may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(b) A member of the militia who intentionally accesses a government computer with an unauthorized purpose and by accessing the government computer obtains classified or other protected information from the government computer may be punished by up to five years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
(c) A member of the militia who knowingly causes the transmission of a program, information, code, or command and, as a result of that conduct, intentionally and without authorization causes damage to a government computer may be punished by up to 10 years of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.945. Breach of medical quarantine.
A member of the militia who is ordered into medical quarantine by a person authorized to issue the quarantine order and who, with knowledge of the quarantine order and the limits imposed under the quarantine order, goes beyond the limits imposed under the quarantine order before the person is released from quarantine by proper authority may be punished by up to one year of confinement, by separation with characterization up to dishonorable discharge, and by such other punishment as a court-martial may direct.
Sec. 26.05.990. Definitions.
In this chapter, unless the context otherwise requires,
(1) “accuser” means a person who signs and swears to charges, a person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused;
(2) “arrest” means the restraint of a person by an order, not imposed as a punishment for an offense, directing the person to remain within certain specified limits;
(3) “cadet,” “candidate,” or “midshipman” means a person who is enrolled in or attending a state military academy, a regional training institute, or any other formal education program for the purpose of becoming a commissioned officer in the militia of the state;
(4) “classified information” means
(A) information or material that has been determined by an official of the United States or any state under law, an executive order, or regulation to require protection against unauthorized disclosure for reasons of national or state security; and
(B) restricted data, as defined in 42 U.S.C. 2014(y) (Atomic Energy Act of 1954);
(5) “code of military justice” means the provisions of this chapter and the regulations adopted by the adjutant general to implement this chapter;
(6) “commanding officer” or “commander” includes only commissioned officers of the militia of the state and includes officers in charge only when administering a nonjudicial punishment under the code of military justice;
(7) “confinement” means the physical restraint of a person;
(8) “controlled substance” means
(A) opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana;
(B) a compound or derivative of a substance specified in (A) of this paragraph;
(C) a substance not specified in (A) or (B) of this paragraph that is listed on a schedule of controlled substances prescribed by the President of the United States for the purposes of the armed forces of the United States under 10 U.S.C. 801 — 946 (Uniform Code of Military Justice);
(D) a substance not specified in (A) or (B) of this paragraph or on a list prescribed by the President under (C) of this paragraph that is listed in 21 U.S.C. 812, schedules I through V;
(E) an illicit synthetic drug identified in AS 17.21.010;
(9) “convening authority” includes, in addition to the person who convened the court, a commissioned officer commanding for the time being or a successor in command to the convening authority;
(10) “day” means calendar day and is not synonymous with the term “unit training assembly”;
(11) “department” means the Department of Military and Veterans’ Affairs;
(12) “enlisted member” means a person in an enlisted grade;
(13) “military court” means a court-martial;
(14) “military judge” means an official of a general or special court-martial described under AS 26.05.470;
(15) “militia” or “militia of the state” means the Alaska National Guard, the Alaska Naval Militia, and the Alaska State Defense Force;
(16) “national or state security” means the national defense and foreign relations of the United States;
(17) “officer” means a commissioned or warrant officer;
(18) “officer in charge” means a member of the naval militia, United States Navy, United States Marine Corps, or United States Coast Guard designated by the appropriate authority;
(19) “record,” when used in connection with the proceedings of a court-martial, means
(A) an official written transcript, written summary, or other writing relating to the proceedings; or
(B) an official audiotape, videotape, digital image or file, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced;
(20) “reviewing authority” means the Military Appeals Commission and the Alaska supreme court;
(21) “senior force judge advocate” means the senior judge advocate of the commander of the same force of the militia of the state as the accused and who is that commander’s chief legal advisor;
(22) “unit” means a regularly organized body of the militia of the state not larger than a company, a squadron, a division of the naval militia, or a body corresponding to one of them.
Chapter 10. Veterans.
Sec. 26.10.010. Regulations.
The Department of Military and Veterans’ Affairs shall adopt regulations necessary to carry out the purposes of this chapter.
Sec. 26.10.020. Veterans service fund. [Repealed, § 12 ch 42 SLA 1997.]
Sec. 26.10.030. Acceptance of gifts, donations, and grants.
The Department of Military and Veterans’ Affairs may receive gifts, donations, and grants from any person or agency. All gifts, donations, and grants shall be used in accordance with the donor’s instructions.
Sec. 26.10.040. Training in rehabilitation and service work.
The Department of Military and Veterans’ Affairs may approve expenditures by veterans’ organizations and may reimburse them for their expenditures in employing full time service officers, for necessary travel expenses, including travel by service officers outside of the state not more than once each year for purposes of training in veterans’ rehabilitation and service work, and for per diem not exceeding that allowed state employees. The department shall limit payments to veterans’ organizations to an amount that will fairly compensate them for salaries and expenses paid to their full time service officers in performing rehabilitation work for veterans, including the prosecution of their claims and solution of their problems arising out of military service. This service and assistance shall be given to all veterans and their dependents and to all beneficiaries of any military claim and shall include but not be limited to those services now given by the service departments of the respective organizations.
Sec. 26.10.050. Approval of payments.
Payment to a veterans’ organization shall first be approved by the Department of Military and Veterans’ Affairs and so far as possible shall be on an equitable basis for rehabilitation work done.
Sec. 26.10.060. Extension of Universal Military Training and Service Act provisions to Alaska employees.
(a) The provisions of 50 U.S.C. App. 459 (sec. 9, Universal Military Training and Service Act), as amended, are extended to this state and its political subdivisions.
(b) In this section, “veteran” means a person
(1) subject to the Universal Military Training and Service Act; or
(2) who served in the Alaska Territorial Guard.
Sec. 26.10.065. Disposition of remains of state resident armed forces personnel on duty status.
(a) Except as provided in (b) of this section, if a state resident who is a member of the armed forces has executed the United States Department of Defense Military Record of Emergency Data Form (DD Form 93), or its successor form, to serve as a record of emergency data and, on that form, has designated a person who is authorized to direct the disposition of the member’s remains if the member dies while in a duty status as described in 10 U.S.C. 1481, notwithstanding any other provision of law, the person authorized to direct the disposition of remains on the executed form has the right to make the decisions concerning the disposition of the member’s remains.
(b) If a state resident who is a member of the United States Coast Guard has executed the United States Coast Guard Designation of Beneficiaries and Record of Emergency Data Form (CG-2020D), or its successor form, to serve as a record of emergency data and, on that form, has designated a person who is authorized to direct the disposition of the member’s remains if the member dies while in a duty status as described in 10 U.S.C. 1481, notwithstanding any other provision of law, the person authorized to direct the disposition of remains on the executed form has the right to make the decisions concerning the disposition of the member’s remains.
Sec. 26.10.070. Record of veterans of the armed forces of the United States.
(a) A veteran may record without fee the veteran’s armed forces report of separation at a recorder’s office of the Department of Natural Resources.
(b) [Repealed, § 2 ch 25 SLA 2001.]
Sec. 26.10.080. Death gratuity.
(a) The Department of Military and Veterans’ Affairs shall pay, upon application, a death gratuity in the amount of $750 to the surviving spouse of a qualified veteran who was a resident of the state at the time of death. If the veteran has no surviving spouse, the gratuity shall be paid to the personal representative of the veteran. A veteran is qualified under this subsection if the veteran’s
(1) burial occurred in the state on or after May 13, 1984; or
(2) death occurred on or after September 19, 1990.
(b) A death gratuity may be paid for a veteran otherwise eligible under (a) of this section even if the veteran died while temporarily absent from the state.
(c) The Department of Military and Veterans’ Affairs may not pay a death gratuity unless the veteran for whom payment is made received an honorable discharge or a general discharge under honorable conditions.
(d) In this section,
(1) “personal representative” includes administrator, executor, special administrator, successor personal representative, and persons who perform substantially the same function under the law governing their status;
(2) “veteran” means
(A) a person who served in a branch of the armed services of the United States
(i) who at the time of entry into the service was a resident of the territory or state, who had been a resident for not less than one year immediately before entry into the service, and who returned to the territory or state within one year after discharge as a resident with the intention of remaining in the territory or state; or
(ii) who was a resident of the state for not less than one year immediately preceding the time of death; or
(B) a person who served in the Alaska Territorial Guard, the Alaska Army National Guard, the Alaska Air National Guard, or the Alaska Naval Militia, or who served in a reserve unit of the United States armed forces in Alaska if the reserve unit required a minimum of one weekend of duty each month and 15 consecutive days of active duty training each year for not less than three years.
Sec. 26.10.090. Alaska Territorial Guard veterans included.
In this chapter, except where otherwise indicated, “veteran” includes a person who served in the Alaska Territorial Guard.
Chapter 15. Veterans’ Loans.
Sec. 26.15.010. Powers and duties of Department of Commerce, Community, and Economic Development with respect to veterans’ loans. (a) The Department of Commerce, Community, and Economic Development shall administer the laws and regulations relating to the veterans’ loan program, adopt new regulations, and recommend legislation.
(b) The department shall obtain the guarantee of the United States under the Servicemen’s Re-Adjustment Act on loans as prescribed by regulations of the department. Under regulations of the department, the department may guarantee or insure loans or portions of loans not to exceed 90 percent as may be obtainable by veterans having the qualifications of beneficiaries under this chapter from any person, firm, corporation, bank, savings and loan association, or an agency or instrumentality of the United States, and may grant participating portions of the loans.
(c) Under regulations of the department, the department may grant loans to two or more qualified veterans to engage in the same business, as a partner or joint venturer with one or more other persons. However, if one or more veterans engage as a partner in a business or joint venture with a nonveteran, the department shall require the nonveteran or nonveterans to contribute equally to the capital assets of the business or joint venture.
(d) Under regulations of the department, the department may enter into contracts with insurance companies for mortgage insurance coverage on veteran loans.
Sec. 26.15.020. Validation of certain documents.
The deeds, mortgages, assignments, or other documents made, executed, and delivered in conformity with the provisions of this chapter and as otherwise required by law, in which the designation “Veterans’ Affairs Commission” appears, whether as grantor, grantee, mortgagee, assignor, assignee, or otherwise, are validated and confirmed, and all obligations incurred under the provisions of any such deed, mortgage, assignment, or other instrument by the Territory of Alaska, the Alaska World War II Veterans’ Board, or the commissioner of veterans’ affairs, in an official capacity, are hereby declared to be good, valid, and subsisting obligations, and the covenants, conditions, and provisions, if any, prescribed to be kept, paid, performed, or observed, imposed upon any party described in any such instrument shall be discharged as herein set forth, the fact that the officer executing and delivering any such instrument added to the officer’s signature the description “Veterans’ Affairs Commission,” notwithstanding.