Legislature(2015 - 2016)GRUENBERG 120
04/09/2016 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB205 | |
| HB214 | |
| HB286 | |
| HB334 | |
| HB286 | |
| HB214 | |
| HB334 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 214 | TELECONFERENCED | |
| + | HB 286 | TELECONFERENCED | |
| + | HB 334 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 205 | TELECONFERENCED | |
HB 334-CHILD CUSTODY; DOM. VIOLENCE; CHILD ABUSE
3:18:15 PM
CHAIR LEDOUX announced that the final order of business would be
HOUSE BILL NO. 334, "An Act relating to visitation and child
custody."
3:18:40 PM
CRYSTAL KOENEMAN, Staff, Representative Cathy Munoz, Alaska
State Legislature, advised that HB 334 was introduced to give
judges more discretion in determining the best interests of the
child in custody cases. She advised that Representative Munoz,
through conversations with constituents and others, determined
that the way custody visitation statutes are written regarding
domestic violence may not provide proper due process.
Currently, AS 25.24.150 includes a provision that if a parent
has been accused of domestic violence, that parent may not be
awarded sole, or joint physical or legal custody of the child.
Although there is a rebuttable presumption in this statute, the
accused is guilty and must prove their innocence, which is
contrary to the typical judicial process where the accused is
innocent until proven guilty. She noted the pendulum may have
shifted "a little too far." The bill was introduced to provide
more discretion for judges because during conversations with
lawyers and judges it appears judges do not have enough
flexibility in truly determining the best interests of the
child. She then offered to go into the technical aspects of the
bill and the changes made by the House Health, Education and
Social Services Standing Committee.
3:21:47 PM
CHAIR LEDOUX advised that she would like to know the changes the
House Health, Education and Social Services Standing Committee
made, why the changes were made, and whether the sponsor is in
agreement with those changes.
MS. KOENEMAN responded that the changes made in the House
Health, Education and Social Services Standing Committee are
quite extensive, but the sponsor worked closely with committee
members on both sides of this issue and all parties are working
toward a middle ground.
MS. KOENEMAN referred to CSHB 334, Version I, [AS 25.20.060(a)]
Section 1, page 1, lines 8-9, and called attention to the
bracketed language removing the rebuttable presumption
established in AS 25.24.150(g), and advised the presumption was
removed by the House Health, Education and Social Services
Standing Committee.
3:22:53 PM
MS. KOENEMAN referred to AS 25.20.061, Sec. 2, and explained
that within the original version of the bill [Version H] the
language read that the rebuttable presumption would kick in if a
person was convicted of a crime of domestic violence. The House
Health, Education and Social Services Standing Committee
determined it was too high of a bar and the language was
modified to "clear and convincing evidence," she said.
CHAIR LEDOUX asked too high of a bar for what.
MS. KOENEMAN responded that there was concern that when it comes
to prosecuting those who have committed acts of domestic
violence, they do not always receive a conviction. She
continued that even though they may have an extensive history of
domestic violence, they may have an excellent lawyer or are able
to plead down the charges and the conviction of domestic
violence would not be on their record. She explained there was
concern with the conviction language and that clear and
convincing evidence is a higher bar than a presumption of
evidence, but not as high of a bar as a true conviction. She
said the clear and convincing evidence was added in Sec. 2.
3:24:41 PM
MS. KOENEMAN referred to Sec. 3, [AS 25.20.070, page 2] and said
the rebuttable presumption language is removed.
CHAIR LEDOUX asked her to explain where the rebuttable
presumption evidence factors in.
MS. KOENEMAN responded that the workings of AS 25.24.150 were
reworked in Sec. 7 of the bill. She offered to jump to that
section and possibly make things more clear in moving through
the bill, and noted that the earlier sections are conforming
language either removing that rebuttable presumption language or
adding it in.
CHAIR LEDOUX agreed.
3:25:29 PM
MS. KOENEMAN referred to Sec. 7, beginning page 4, [beginning
line 17], is AS 25.24.150(c) said it outlines what the court
shall determine in considering the best interest of the child.
She then turned to page 5, line 6, clear and convincing and
advised under current statute AS 25.24.150(g), repealed in this
bill, the rebuttable presumption was housed. She explained that
in place of the repealed language, the bill inserts a new Sec.
8, [AS 25.24.150(m)] page 5, lines 12-28], which read:
(m) If the court finds by clear and convincing
evidence that a parent has a history of perpetrating
domestic violence or has been convicted of a crime of
domestic violence against the other parent, a child,
or a domestic living partner, within the five years
preceding the award of visitation, the court may set
conditions for the visitation under AS 25.20.061.
MS. KOENEMAN explained that AS 25.20.061 is located in Sec. 2 of
the bill. She described a bit of cross-referencing when it
comes to this version in order to truly determine what
conditions are contained in that. She pointed out that the
rebuttable presumption included language for the batterer's
program. Although, she related, it is not offered in all areas
of the state, and in areas where the program was offered, due to
funding cuts, the programs are down to limited amounts. Also,
she offered, some programs are working toward not having that
program at all, such as the Catholic Community Center in Juneau.
The language in Sec. 2 outlines other visitation safeguards for
the accused, she said.
3:27:50 PM
MS. KOENEMAN advised that Sec. 9 outlines the repealers of the
rebuttable presumption language in current statute.
CHAIR LEDOUX asked whether there is no longer rebuttable
presumption under this bill.
MS. KOENEMAN responded that under CSHB 334, Version I, the
rebuttable presumption was removed.
CHAIR LEDOUX questioned that under current law if a person is
found to have been a perpetrator of domestic violence, the
person can rebut that presumption, correct.
MS. KOENEMAN agreed.
CHAIR LEDOUX surmised that under this bill it makes it more
difficult for a person to have been found to have participated
in domestic violence due to the clear and convincing evidence
standard, but a person can no longer rebut it.
MS. KOENMAN agreed.
CHAIR LEDOUX surmised that it is giving on one hand and taking
away on the other, it seems.
MS. KOENEMAN agreed that it is one way to look at it; however,
the language in Sec. 2 of the bill outlining visitation, the
courts may set conditions for the transfer of the child in a
protective setting. She then listed some of the eight
conditions [as set forth on page 2, lines 5-23], and other
conditions necessary for the safety of the child. She said that
if there isn't the evidence, the judge has the discretion to
prohibit overnight visitation or the person may be ordered to go
to the batterer's program, for example.
3:30:49 PM
REPRESENTATIVE KELLER asked for clarification that the sponsor
is working on this and plans to come back to the committee,
possibly tomorrow.
MS. KOENEMAN said if that is the will of the committee and
advised that the sponsor is aware of the significance of this
issue and understands the emotional aspects of it. She pointed
out that the sponsor is not trying to push the bill through the
system because she wants something that protects the victims and
also protects those who may be wrongfully accused. The
sponsor's interest is with the children and to not be taken away
from their parents except in situations where the judge
determines it is necessary.
3:31:53 PM
CHAIR LEDOUX advised that it is not her intention to move the
bill today because there is a lot of public testimony yet to
come. Although, she added, it is her intention to eventually
move the bill because she is a co-sponsor.
REPRESENTATIVE KREISS-TOMKINS surmised that this legislation
removes the rebuttable presumption and that rebuttable
presumption presently exists within the criteria on domestic
violence. He opined that in reviewing the surrounding statute,
it appears there is not an evidentiary standard of clear and
convincing evidence that applies, such as substance abuse. He
then asked the rationale for ratcheting up the evidentiary
standard for domestic violence while leaving the criteria on
substance abuse unchanged.
3:33:25 PM
MS. KOENEMAN answered that clear and convincing evidence is a
clearly defined definition in law and within current statute
there is a history of domestic violence which is not defined and
is left to the discretion of the judge. Under AS 25.24.150(h)
it tries to define domestic violence and reads that if the court
finds that the parent has engaged in one serious physical
injury, or the court finds that the parent has engaged in more
than one incident of domestic violence, that is when the
rebuttable presumption kicks in.
REPRESENTATIVE KREISS-TOMKINS honed his question and pointed out
that the bill is ratcheting up the evidentiary standard for
domestic violence and there are other criteria that won't have
such a rigorous standard, he asked why.
REPRESENTATIVE KREISS-TOMKINS offered that he was looking at AS
25.24.150(h).
MS. KOENEMAND referred to AS 25.24.150(h), evidence of substance
abuse by either parent or other member of the household affects
the emotional and physical wellbeing of the child. She said
that is what is currently in statute and the sponsor was focused
on the domestic violence piece, she did not look more closely at
the evidence of substance abuse. She described it as a good
question that she does not have the answer as to why it's
evidence versus clear and convincing, and that it was not
discussed in committee.
CHAIR LEDOUX commented that sometimes you can't fix everything
at one time in a bill.
3:36:01 PM
MS. KOENEMAN offered a personal anecdote regarding her divorce,
her children, and that her husband could have wrongly been
accused of domestic abuse. She said she realized that she could
ruin his life and her children's lives if she wanted to be
vindictive, "which women tend to be at times, and I thought long
and hard on it."
CHAIR LEDOUX interjected that all human beings tend to be
vindictive at times.
MS. KOENEMAN stated Representative Munoz's office has seen
fathers ripped away from their children for no other reason than
a woman wanting custody of their children. There is true
domestic violence out there, she acknowledged, and children need
protection, but there are times when the laws written by the
legislature have unintended consequences. The sponsor is
fighting for the parents that have had their children ripped
away when they haven't done anything other than have an argument
or slam a door, she said.
3:39:58 PM
REPRESENTATIVE KREISS-TOMKINS thanked Ms. Koeneman for her
testimony as it helps illustrate the intent of the bill. He
asked, under current law, when a restraining order has been
filed and violated, whether the defendant has the ability to
rebut the presumption of domestic violence.
MS. KOENEMAN advised that the defendant is awarded that
opportunity; however, they are guilty until they prove their
innocence. She added that it may have been something that
happened 10-years ago in a prior relationship and they are able
to use it in the current case. Also, it's a matter of who has
the better lawyer, or who has a lawyer because in these
situations they're not required to have a lawyer. It is a civil
proceeding and not a criminal proceeding, she explained.
Although, there are times when those without the funds can get a
pro bono attorney but it doesn't guarantee that both [parties]
will have attorneys while fighting to prove their innocence.
Ultimately, it is up to the judge to determine the evidence they
are provided to make that ruling, she said.
3:43:32 PM
REPRESENTATIVE KREISS-TOMKINS surmised that the bill's intent
is, on one hand to prevent the scales being tipped against
spouses who, because they didn't hire the Cadillac lawyer and
might be deprived of the ability to have a fighting chance at
custody of their children. On the other hand, weighing a robust
protection of children that may have grown up in abusive
households, he pointed out. He surmised the intent is to
achieve a better balance by shifting it a bit more toward his
first description rather than the second description.
MS. KOENEMAN responded that that is exactly what the sponsor is
attempting to do, to find the balance, and that possibly the
pendulum balance shifted too far and unintended consequences
have resulted.
REPRESENTATIVE KREISS-TOMKINS asked whether there is data in
child custody cases regarding how often the rebuttable
presumption is invoked, and how often the rebuttable presumption
for domestic violence dictates the outcome of a child custody
case. He would like to have a sense of the scope of this
perceived problem that this bill ostensibly seeks to solve.
MS. KOENEMAN deferred to Nancy Meade, and opined that the court
system's tracking system doesn't capture that data.
CHAIR LEDOUX commented to Ms. Koeneman that it took guts to
relate her story.
3:46:43 PM
REPRESENTATIVE CLAMAN said for several years he has been a pro
bono attorney for the Alaska Network on Domestic Violence and
Sexual Assault. He offered he has found the issue of child
custody determinations challenging when it comes to domestic
violence proceedings. District courts have been assigned, as a
matter of jurisdiction, to make decisions about whether someone
has committed, not a crime of domestic violence but enough acts
to find that someone is entitled to a domestic violence
protective order. That order sometimes leads to domestic
violence convictions, and sometimes it doesn't. He pointed out
that significant power has been given to the district courts to
make findings about domestic violence and as part of those
findings, have given the district court the power to make
determinations about child custody. As a due process matter in
a divorce, the district court is not trusted to make child
custody decisions and, in theory, the superior court makes its
own decision on child custody. He expressed that in practical
terms, the domestic violence protective order that gives the
children to one parent, tends to control what happens in the
superior court later. Yet, he stressed, the district court
isn't supposed to be deciding those things, and this bill has
raised his concern with the whole notion about who is really
deciding child custody, and at what point it is decided. He
said he has been troubled by that and is not sure he has an
answer.
2:49:30 PM
REPRESENTATIVE CLAMAN expressed that the other side of the whole
dynamic is that Alaska is perhaps the worst state in domestic
violence in the country, and that part of the problem with
domestic violence is how to convince victims to come forward.
The cycle of domestic violence and the non-reporting is enormous
and it is even worse in Bush Alaska and Rural Alaska than it is
in urban Alaska. The people that have worked on behalf of
victims in domestic violence consistently report that if this
law is changed it will be harder for them to get real victims to
come forward. He said he doesn't have a solution because he
knows that children need meaningful relationships with both
parents, and all parents are imperfect and have had moments of
anger. Where is the balance, he asked and related that he is
interested to hear from witnesses particularly on the
jurisdictional question about this decision effectively being
made in the district court even though it is a decision to be
made in the superior court, and whether that is something the
committee should be looking at.
3:51:13 PM
CHAIR LEDOUX said she follows Representative Claman and asked
whether in the ex parte domestic violence restraining order
situation where only the person requesting the restraining order
is there, and that the person to be restrained is not at the
hearing. She asked whether the person is served with notice and
the process.
3:51:54 PM
MS. KOENEMAN deferred to Nancy Meade, and opined that with the
ex parte orders only one party is present to obtain a
restraining order and the other person is then served without
notice.
CHAIR LEDOUX asked Ms. Meade to answer questions regarding
restraining orders, and noted that the bill sponsor was in the
room and she was welcome to add anything to her aide's
testimony.
3:52:42 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System (ACS), offered
to explain the difference between ex parte domestic violence
protective orders and long-term domestic violence protective
orders. She said it is true that any party can file a petition
for a domestic violence protective order and they are granted if
there is probable cause. Under Title 18, there are short-term
domestic violence protective orders that ...
CHAIR LEDOUX asked how short-term is short-term.
MS. MEADE answered that a short-term protective order is a 20
day order and it is ex parte. She clarified that there are
three kinds of protective orders: a 72-hour filed by a law
enforcement officer and not common; a more common situation is
an ex parte short-term order and the judge has to find probable
cause to believe that a crime of domestic violence has occurred
and that the order is needed to protect the petitioner from
further domestic violence, and at the end of the 20 days there
is a hearing to determine whether a long-term order is justified
and the respondent is present at the hearing. A long-term order
can last up to one-year by statute and at the end of the year
someone could file again. Short-term orders are granted ex
parte, but under AS 25.24.150, the short-term orders do not
count as a prior incident of domestic violence because they
haven't been fully litigated. For example, she offered, when a
judge is determining child custody cases, such as those covered
by the bill, the short-term orders are not counted as one
incident of domestic violence. Any party in a custody dispute
can claim domestic violence and the judge would make a
determination sitting right there about what happened, but the
short-term are not litigated and are not an auto-count for
purposes of finding the presumption is in place.
3:55:18 PM
CHAIR LEDOUX surmised that when Ms. Meade says "litigated" it is
not litigated in front of a jury with the normal due process
rights that would come from litigating something in front of a
jury of your peers, is it.
MS. MEADE responded that domestic violence protective orders are
not handled by a jury.
3:55:45 PM
REPRESENTATIVE LYNN noted that Ms. Meade had said that anyone
can file for a protective order, and offered a scenario of a
father being aware of domestic violence occurring in his
daughter's home but the daughter doesn't want to file, can a
father file a protective order for their daughter.
MS. MEADE answered that anyone can file anything in the court
system, and it does have petitions entitled "OBO" which are "on
behalf of." Therefore, a person can file on behalf of an
alleged victim of domestic violence and the court would hear
those, although it would be better if the victim was available
to back up the father's allegations. A parent can claim
allegations against a child and it is not unusual, especially if
they are all in the same household, she said.
REPRESENTATIVE LYNN surmised that the process would be the same.
MS. MEADE agreed that it is basically the same, there may be a
difference in who provides evidence to the judge making the
determination whether to grant the protective order. Those are
not uncommon, she offered, and sometimes a person files on
behalf of themselves and on behalf of their minor children in a
household against someone they say is perpetrating domestic
violence against all of them.
3:57:56 PM
CHAIR LEDOUX asked whether a judge would issue a protective
order based upon someone's allegation, simply saying that
someone told the person offering the allegations, that they were
being hit by another person, she asked.
MS. MEADE replied that she would not speculate on what a judge
would or wouldn't do in a situation, but would say that the
court's data shows that petitions for ex parte protective orders
are granted at about a 53 percent grant rate. The data could be
viewed in different ways, such as the judges should be granting
more or that the judges are seeing allegations that are not
true, but the short-term protective orders are granted at about
53 percent of the time. The long-term protective orders are in
the 20 percent grant range, for many reasons, and one is that
many of them are dropped by the petitioner and do not show up
for the hearing. Initially, the petitioner checks the box for
both the short-term and long-term protective order and after the
20 days they just do not attend the hearing, and that happens at
least 33 percent of the time.
3:59:45 PM
REPRESENTATIVE KELLER asked whether probable cause is a standard
each judge would decide for themselves in cases, where one judge
might say if there's smoke, there's fire and the order is
granted, wherein another judge might say they need more
information.
MS. MEADE responded that it is a subjective call as to whether
there is probable cause to believe a crime of domestic violence
occurred and Alaska's judges make those sorts of determinations
all day long. The plain answer is, yes.
4:00:24 PM
REPRESENTATIVE KREISS-TOMKINS referred to a situation of a
restraining order being violated and questioned whether that
constitutes an act of domestic violence.
MS. MEADE clarified that the definition of domestic violence in
AS 18.66 does include an instance of violating a domestic
violence protective order.
CHAIR LEDOUX asked whether domestic violence includes a
situation where a physical assault does not occur, such as
yelling at someone.
MS. MEADE answered yes, because a common crime of domestic
violence is a "fear assault" which does amount to a crime of
assault if a person has a reasonable fear for their own safety.
Short of a punch, there is an assault that could be found, she
said.
4:01:56 PM
CHAIR LEDOUX referred to the domestic violence restraining order
petitions and asked whether some are brought pro per and others
with the assistance of counsel.
MS. MEADE explained that the domestic violence protective order
brought by petitioners are almost always brought without an
attorney, although an attorney could be brought in. She said
they are heard by the court after filing within 24 hours and
most petitioners do not retain an attorney in that time period,
but they may.
CHAIR LEDOUX asked whether Ms. Meade has ever had the idea,
based upon the way the allegations may be written in some of the
petitions that, someone has had the assistance of counsel in
making the allegations.
MS. MEADE opined that it might happen, but in dealing with the
magistrates and judges who hear these matters, it is mostly a
handwritten petition. She explained that the court system
provides a blank form petition that is a few pages long, and
people often, in certain courts, have the assistance of a
domestic violence advocate to help them complete the form
because sometimes the petitioner is in such a state that it is
difficult to complete that document.
4:03:42 PM
REPRESENTATIVE KREISS-TOMKINS noted that the goal is to find the
balance of two valid scenarios, and it would be helpful to know
how many times the rebuttable presumption is invoked and when it
ends up being the trump card in a custody dispute. Absent that
information, he commented, he does not feel well equipped to try
to say where on the spectrum is the sweet spot. He added that
he sees both compelling scenarios but has difficulty knowing how
to proportionally weigh each.
4:05:13 PM
MS. MEADE acknowledged that the court system does not have the
data because the CourtView system does not keep data on things
that are said in a case or the sorts of things discussed or
brought into issue in a case. She offered that the rebuttable
presumption in child custody cases is not rarely invoked, and
anecdotally after speaking to just a few judges, it is less than
one-half the time but it is not uncommon and it is not every
case. At which point, once invoked, the judge has to determine
whether it is found. She offered that it could be that one
parent in the custody dispute claims that it had happened, and
thereafter there is fact finding and a discussion of whether it
did, and of course it is found in many fewer times than it is
invoked.
4:06:24 PM
REPRESENTATIVE KREISS-TOMKINS referred to Ms. Meade statement,
"it is often found much fewer times than it is invoked," and
because the discussion is a rebuttable presumption everything is
inverted. He added that, it's found the presumption is rebutted
...
MS. MEADE responded that she may have misspoken. She related
that in a custody dispute one parent tells the judge that there
is domestic violence and at that point it is invoked, then there
is fact finding that occurs within the custody case and the
judge asks questions, at which point the judge makes a
determination whether to find that there is a history of
domestic violence and; therefore, that the presumption attaches.
Once the presumption attaches, a person goes under AS
24.25.150(h) to say how the parent who is now rebuttably
presumed to have committed the domestic violence can nonetheless
get custody of the children. She explained that the presumption
is not that a person committed domestic violence, it is a
rebuttable presumption that if it is found a person can't get
sole legal custody, joint custody, etcetera. The presumption
attaches and yes, the person is presumed to have committed this
domestic violence and, now, to get custody there are way to
overcome the presumption [subsection (h], she explained.
4:08:24 PM
REPRESENTATIVE KREISS-TOMKINS referred to the presumption
attaching and becoming incumbent upon the party against whom
allegations of domestic violence were made to overcome that
presumption, and asked what percentage of the time is that
presumption, once attached, overcome.
MS. MEADE reiterated that once the presumption attaches, which
means the person is a perpetrator of domestic violence for
purposes of this case, that person can only get custody if they
overcome the presumption. She explained that this is not
overcoming the presumption that a person committed the domestic
violence because it is attached now. The person then has to
overcome the presumption to have some custody of the children.
She again reiterated that the percentage is not something the
court system tracks or keeps data on. Anecdotally and roughly,
she noted, the presumption could be invoked in less than one-
half of the cases, and the same sort of anecdote in about 20
percent of those that the judge does indeed find that the
presumption applies.
4:09:50 PM
REPRESENTATIVE KREISS-TOMKINS returned to the restraining order
being violated scenario which is, by definition, an instance of
domestic violence, and asked that even if there is no physical
domestic violence would a judge ever overcome that presumption
of domestic violence since there is a by the book definition of
an act of domestic violence.
MS. MEADE responded that the definition of a history of
perpetrating domestic violence, which is what has to be found,
is one incident of domestic violence with serious physical
injury, or more than one incident of domestic violence.
Therefore, she said, violating a protective order would be an
incident of domestic violence, but if it didn't include serious
physical injury the person would need a second instance for the
judge to find that there was a history of domestic violence.
4:11:08 PM
CHAIR LEDOUX used the example of someone throwing a book that
doesn't hit anyone, and asked whether that is an instance of
domestic violence, or if someone could say that they were in
fear of their lives because someone threw the book at them.
Then, a person violates the domestic violence protection order
because they run into the person at McDonald's and tries to
explain that they weren't trying to hurt them. She surmised
that that could be the history of perpetrating domestic
violence.
MS. MEADE offered that the judge could find a history of
domestic violence based on that hypothetical.
4:12:14 PM
MS. KOENEMAN responded to Representative Claman's question
regarding the superior court looking at the domestic violence
custody cases versus the district court. Under AS 25.20.060(a)
[Petition For Award of Child Custody], which read:
(a) If there is a dispute over child custody,
either parent may petition the superior court for
resolution of the matter under AS 25.20.060 -
25.20.130. The court shall award custody on the basis
of the best interests of the child. In determining the
best interests of the child, the court shall consider
all relevant factors, including those factors
enumerated in AS 25.24.150 (c), and the presumption
established in AS 25.24.150 (g). In a custody
determination under this section, the court shall
provide for visitation by a grandparent or other
person if that is in the best interests of the child.
MS. KOENEMAN advised Representative Claman that she wanted him
to know there is an option, it's not a definitive up to the
superior court for that.
4:13:03 PM
REPRESENTATIVE CLAMAN expressed that he certainly is aware of
that statute, and explained that that section arises in a child
custody proceeding because it appears in Title 25, and not Title
18 which is the domestic violence protective order statute. He
offered that the domestic violence protective order petition has
a box to check in dealing with child custody issues and when a
person goes to court with the ex parte 20 day order and checks
both boxes there is place where they can ask the district court
to make custody determinations. While technically, there is a
place in the statute, the notion that the typical pro se
petitioner understands their options, or that when the person
served with the 20 day order that advises them of the hearing
date understands that they could then petition the superior
court to hear that matter, in the world of the average person is
pretty far afield.
MS. MEADE noted that she wanted to put on the record that the
Alaska Court System is neutral on this bill, and whatever is
decided, the judges will apply.
4:15:23 PM
The committee took an at-ease from 4:15 to 4:25 p.m.
4:25:58 PM
CHAIR LEDOUX opened invited and public testimony.
4:26:32 PM
KIRSTEN SWANSON, Attorney, advised that she is an attorney and
is concerned about this bill. She said she has done criminal
defense for many years and also has defended cases for the
Alaska Network on Domestic Violence and Sexual Assault. She
opined that this bill is an attempt to even out the playing
field because, as she has seen in her practice, there have been
unintended consequences over the years with the way the
presumption is applied and this is an attempt to try to take
away some of those problems. The most important people are the
children and there are situations where people are encourage to
go nuclear from the get-go because they are trying to get an
advantage in their case. When considering the best interests of
the children, part of the statute still incorporated in this
bill allows judges to go back to that best interests of the
children and concentrate on that, which should be the important
part of this bill. She referred to Representative Kreiss-
Tomkins question, why alcohol isn't a part of this, the
substance abuse is also clear and convincing. She explained
that the difference, specifically, is in the domestic violence
statute. It puts a person into the rebuttable presumption that,
allegedly, there is a history of domestic violence and under
that statute the alleged perpetrator will have to go to a
batterer's program, can't have overnight visits, and ends up in
a situation where they can only have visitation with somebody
from Catholic Community or some other person. She pointed out
that those do not come into being if there's an allegation that
someone is drinking or using drugs. She would not be opposed to
actually raising it to clear and convincing, she expressed, but
it's because that doesn't invoke the same thing as an allegation
of domestic violence and is specifically to that question.
4:29:22 PM
MS. SWANSON continued that in the real world when someone files
a short-term domestic violence ex parte they are generally with
an AWARE advocate or family member. The alleged victim tells
their side of the story which is not evidence based because it
is ex parte, and the alleged perpetrator is not present. The
judge may agree and grant a 20 day order, within those 20 days
the other parent usually cannot see their children, can't go to
the school, can't talk to their school teacher and are cut out
of the children's lives for 20 days. She remarked that 20 days
may not seem like a long time, except she has had cases where
the other parent locked the doors, emptied out the bank
accounts, and sometimes told the children how the other parent
is a bad parent. She expressed that 20 days is a big deal.
4:30:21 PM
MS. SWANSON related a case where a client, on the other side of
the house banged their head into the door and put a hole in the
door. The other spouse called the police and her client was
charged with criminal mischief, domestic violence having never
said anything, or in the same room. Her client received an
invitation from the police for a short-term domestic violence
hearing in 20 days. Within that 20 days her client found an
apartment and everything was fine except they sent out a group
email to their family and friends with a picture of them in
their new apartment with their cat, and the alleged victim was
included in the group mailing. Even though it was not
intentional, the police came and her client was charged with
violating a criminal domestic violence order because he sent out
that email. She said she could give the committee a list of
cases such as this.
4:32:41 PM
CHAIR LEDOUX interjected that she wanted to be sure she
understand this, and related that there is a domestic violence
restraining order ...
MS. SWANSON clarified that it was the short-term restraining
order.
CHAIR LEDOUX continued that it was a short-term restraining
order and within that 20 days they got back together again.
MS. SWANSON clarified that her client found a new place to live
because they were going to file for divorce, and when her client
was in the new place sent out a group email to everyone saying,
"Here's my new house and here's the cat ..."
CHAIR LEDOUX asked who is "they."
MS. SWANSON explained that it was her client, the one who had
the restraining order filed against them in the short-term.
CHAIR LEDOUX surmised that he sent out the email, to who.
MS. SWANSON responded that it was sent to his mother, his
father, his sister, a bunch of his friends, and the wife, in one
group stream which technically violated the restraining order
due to the contact. She said she has also had clients that
dialed someone where it is clear when listening to the recording
later that there are driving sounds with no voice and it is
clear someone accidentally hit it. She said she tells her
clients whenever there is a restraining order to delete the
person making the allegation from their Facebook, text, email,
and the phone so there is no accidental contact. In itself,
that is a violation as it is contact at that point and, she
stated these things do happen in real world situations.
4:34:33 PM
MS. SWANSON commented that there is no data as to how many of
these have been filed. She understands that prior to 2005
there's not a way to go back in CourtView to determine how many
short-term and long-term domestic violence orders have been
filed. Also, she offered, sometimes people don't show up, the
couple gets back together before the long-term so there is no
long-term, sometimes both parties attend the long-term hearing
with attorneys and the attorneys stipulate to try to steer the
people out of the domestic violence court and into mediation to
deal with this matter in other ways. She opined that statistics
do not necessarily show what happens in the real world with some
of these cases. She stressed this is not to pick on victims of
domestic violence, and the bill as written protects people and
it also, more importantly, protects children so a father or
mother is not allowed to see their children for 6-12 months
while fighting about whether or not there was domestic violence.
She advised that the bill gives judges more leeway.
4:36:04 PM
REPRESENTATIVE KREISS-TOMKINS noted two changes in the bill:
deleting the rebuttable presumption; and the bill ratchets up
the evidentiary standard to clear and convincing evidence. He
asked whether he was correct.
MS. SWANSON responded that the short answer is yes and explained
that the standards of proof are: beyond a reasonable doubt for
criminal; and then preponderance of the evidence, which many
times it is short handed to "as more likely than not."
Currently, when a district court judge is making a determination
as to whether or not there was domestic violence, the judges
will frequently say they have to determine whether there was a
51 percent probability there was an act of domestic violence,
whether criminal mischief or placed in fear assault, that's
enough. When discussing raising the standard of proof, it is
being raised from 51 percent to "clear and convincing evidence,"
it is not being raised to "beyond a reasonable doubt," but it is
a bit higher than the 51 percent. Technically, yes the standard
is being raised up but not so much that it becomes completely
burdensome, but there still has to be more proof as to what
happened, she explained.
4:37:50 PM
REPRESENTATIVE KREISS-TOMKINS commented that 51 percent strikes
him as reasonable because domestic violence is serious and if it
is more likely than not that a judge finds there is domestic
violence, it seems like a good reason not to award custody to
the party the judge deems likely to have committed domestic
violence.
MS. SWANSON responded that when discussing domestic violence
most people think of someone slammed up against walls,
strangled, hit, punched, kicked, type of violence. Domestic
violence statutes cover more than that and as an example, an
angry person throws a plate and it breaks, that's criminal
mischief because the other person could be placed in fear. She
commented that she recently had another case with an allegation
of a placed in fear assault. Two parents didn't want to fight
and argue in front of the kids, they got in their vehicle, drove
a block away, and started talking about the divorce and custody.
They both got upset and ended up yelling at each other. She
demanded to go back, he drove her back and let her out. In
court she said she was placed in fear because he was angry with
her, even though he did not threaten her or look like he was
going to punch her. The judge kept pushing her to explain what
happened and she said she thought that if she got out of the car
he might run her over and under cross-examination admitted that
he had never hit her, or done anything violent, and had never
threatened to hurt her. Ms. Swanson advised that she got the
case dismissed but that is an example of placed in fear assault.
MS. SWANSON continued that another placed in fear assault charge
against a client was an allegation that the woman thought the
man was going to hit her when they were yelling at each other.
He clinched his fists and glared at her, even though he did not
hit her or move toward her. When discussing the 51 percent, to
add in what is currently considered domestic violence, she said.
4:40:24 PM
REPRESENTATIVE KREISS-TOMKINS said that strikes him as an
excellent point because maybe it isn't so much the evidentiary
standard, but rather the definition of domestic violence.
MS. SWANSON interjected that that is another thing that needs to
be fixed.
REPRESENTATIVE KREISS-TOMKINS continued that it seems as though
the way the committee has discussed proposing to fix it is not
actually fixing it because it is taking a more encompassing
solution, and separating out technical violations or accidental
contact or violation of restraining orders, non-physical
contact. He suggested that those should be differentiated and
put into a different class than more clearly physical domestic
violence. In those instances it seems that clear and convincing
evidence is doing a disservice to those that have actually been
on the receiving end of physical domestic violence, he remarked.
4:41:18 PM
MS. SWANSON respectfully disagreed with Representative Kreiss-
Tomkins statement. She opined that this does, in part, start
taking care of those problems specifically because the judge is
now given more of an ability to look at the best interests of
the children, and the judge is not being forced in a presumptive
case where the presumption is to immediately have to go back ...
REPRESENTATIVE KREISS-TOMKINS interjected that is not what he
was suggesting. Aside from the rebuttable presumption, he said
he was talking about the evidentiary standard in terms of
separating out physical domestic violence. He commented that
when there is a 51 percent likelihood that someone has been
physically abused, to him it seems like a reasonable standard to
work from. And, he further commented, separating out more
technical or non-physical forms of domestic violence that
possibly have a different evidentiary standard.
4:42:20 PM
CHAIR LEDOUX interrupted Representative Kreiss-Tomkins and
reminded him that many people would like to testify, and these
are philosophical discussions that can take place within the
committee.
4:42:38 PM
DEBORAH HOLBROOK said she has practiced law in Juneau for 40
years and during that time has practiced in the area of civil
law and family law. Ms. Holbrook supports the bill in its
original form, she said, because it is a cleaner line to require
a conviction rather than changing the evidentiary standard. She
explained that she comes from an era when women had no power in
domestic violence situations and now they have too much because
the pendulum has swung so far that just the allegation alone can
ruin someone. She said she does not like to see women abuse the
law because it ruins it for the true victims that have
definitely suffered. Unfortunately, she noted, she sees that
happening all the time in custody situations and the best way to
have healthy well-adjusted happy children and a well-adjusted
future generation is for children to have open and frequent
access to both of their parents, which is what all the
sociological studies reveal. The language in the custody
statute is being used as a weapon and it's become as though
there is a presumption of guilt rather than a presumption of
innocence and attorneys end up in the middle of custody cases
litigating domestic violence crimes. The accused person doesn't
receive the safeguards required in a criminal case, doesn't get
a right to a jury trial, doesn't get the right to counsel, and
doesn't have the higher burden of proof. Denial of access to a
parent's child is at stake here and she remarked that she has
had several cases where the father, typically it is a father,
has been relegated to no contact with their children under five,
even in cases where the father was the primary caretaker. With
regard to child development, if a parent is gone for a week they
are basically gone from the child's life because they do not
have the concept of permanence.
4:46:09 PM
MS. HOLBROOK related that she agrees with Representative Claman,
in that the district courts are making custody determinations
because the ball gets rolling against these fathers with the
issuance of these ex parte orders. The district court judges
hear the allegations from the mother and nothing from the father
during the ex parte hearing. Judges regularly issue the
domestic violence orders based on texting, repeated telephone
calls, and yelling because the definition has gotten so broad.
A lot of these young dads appear to be very naïve, they don't
have a lot of money and do not realize the repercussions of not
appearing at the long-term hearing. For example, the 20 day
hearing order is served on them and they may think that because
they are splitting up they don't need to talk to the mother any
longer, but the district court judges are issuing custody
determinations. She said she had a case where the judge ordered
that there would only be visitation as the mother chose to
allow. The mother chose to not allow any visitation and years
went by because he didn't have a retainer to hire private
attorney. The root of the problem is the cost and she pointed
out that if there are allegations of domestic violence and it's
going to morph into this huge case, it's going to cost a fortune
because it will take a lot of her time no matter what side she
is on. Therefore, if they don't have the money time goes by,
months and years with no contact with the children.
4:48:26 PM
MS. HOLBROOK opined that the legislature needs to focus on
removing obstacles to having, particularly, fathers involved in
their children's lives. It is absolutely imperative that, as a
society, everything is done to support that contact continuing,
and there is a major problem right now with this domestic
violence language in there. She reiterated that she prefers the
original bill requiring a conviction, because then it's clear
they have the right to counsel, and they can get the public
defender if they need to, when being charged with this crime.
She pointed out that that should be required before taking the
draconian step of removing that person from their child's life.
The committee should look at it from the perspective of the
children, they are losing a parent who is concerned about them.
She commented that she testified before the first committee and
doesn't want to beat a dead horse.
MS. HOLBROOK responded to Chair LeDoux that she didn't realize
the members of this committee had not heard her testimony.
4:50:03 PM
CHAIR LEDOUX asked whether an attorney would need to be
appointed if the parent is indigent and the Office of Children's
Services (OCS) is trying to remove a child from the home.
4:50:30 PM
MS. HOLBROOK opined that the indigent parent has a right to get
an attorney, and what is more important in that situation is
that the state has protocols about how much contact there still
has to be between the child and the parent. When they've
intervened due to safety issues ...
CHAIR LEDOUX continued her scenario that things are so terrible
in the household that OCS is intervening and they get a lawyer.
Although, she noted, if it's simply a dispute between two
people, even though a parent could totally lose their rights to
their children, there is no right to a court-appointed attorney.
MS. HOLBROOK responded that she listened to testimony at the
first hearing and she brought up the issue about the right to
counsel. She opined that Mr. Hough, from Petersburg, testified
that in the cases where he represented someone, because he was
working for the Council, that the other side got an attorney.
She offered that she doesn't know what he is talking about other
than, there is a Flores v. Flores, 598 P.2d 893 (1979) that said
if one side was represented by Alaska Legal Services and the
other side was indigent that they were entitled to counsel in a
custody case, and she can't remember a case where she has
actually seen that happened. The problem here is that by the
time the parent gets to the custody case, it's too late. If
they haven't had an attorney to defend against the domestic
violence TRO and a long-term order has been entered, then they
are in a hole and they are going to be spending a lot of money
trying to dig out of that hole and they usually don't have it,
she explained. That's the problem.
4:52:36 PM
ANDY HARRINGTON, Attorney, advised he has performed a lot of pro
bono representation work in domestic relations cases, he was
formerly the head of Alaska Legal Services Corporation (ALSC),
although, he is speaking solely on behalf of himself. He said
Ms. Holbrook is correct, if ALSC is representing one parent in a
custody dispute there is a Flores right to an appointed attorney
on the other side. That also applies to a situation in which
the free attorney is provided through a pro bono program of
either the Alaska Legal Services Corporation or the Alaskan
Network on Domestic Violence and Sexual Assault (ANDVSA). The
right to that attorney is an issue ANDVSA, in particular, has
been quite forward in trying to make sure the other side should
get an attorney, even if it is an ANDVSA attorney, or an ANDVSA
pro bono attorney who is representing one party, he said.
MR. HARRINGTON pointed out that the CSHB 334, [Version I] is
much different than the original HB 334, [Version H], and he
acknowledged that he wasn't in favor of the original but likes
[Version I] even less. He said that to take the nine factors
listed in AS 25.24.150(c) and to single out the only one with
any kind of evidentiary standard attached to it and require
clear and convincing evidence before that factor becomes
relevant to a superior court trying to decide custody issues
unduly deprioritizes it and makes it the last among equals. He
opined that a person cannot say that is necessary in order to
create any kind of remedy to the presumption because this
version of the bill does away with the presumption in its
entirety. He reiterated that making one factor require clear
and convincing evidence, particularly where it is known that so
many divorce litigants are pro se and have no idea what that
standard means or how to establish it, would be a big step in
the wrong direction.
4:55:27 PM
MR. HARRINGTON related that it is important to make the point
that the Alaska Supreme Court has been hearing cases involving
this presumption for several years and has issued many rulings.
Those ruling do significantly cut back on any potential for
abuses or misuses of the presumption in the statute and the
discussion of this issue should take those into account. Going
through a divorce where there is no domestic violence is
traumatic, he remarked, but it is a quantum level higher to be
going through the divorce or representing someone going through
a divorce when there is domestic violence present. He noted an
historical point and said this discussion reminds him of an
earlier era when he was practicing law when the shared child
custody presumption was put into statute, immediately afterwards
there were situations in which people were trying to misuse,
misapply, and misinterpret those statutes as well. The
legislature did not respond by getting rid of that presumption,
it made fine tuning types of amendments to that so it continued
to function as it was originally intended and tried to minimize
those potentials for abuse or misuse. That is the approach he
said he would suggest here because [Version I] is too much of a
sledgehammer and not enough of a scalpel to deal with whatever
problems people feel may exist.
4:57:32 PM
MR. HARRINGTON referred to Representative Claman's comments
regarding district courts deciding child custody cases and said
it is important to note that the district court can decide the
domestic violence petition, which can include a custody decree
and it is good for up to a year. He commented that the district
courts in his experience are "always, always, always" pushing
the parties to try to file a superior court case and get a
permanent custody arrangement put in place for the children.
The extent to which the superior court has to defer or not defer
to the district court finding that there has been domestic
violence, he opined that the Alaska Supreme Court said that
falls under the heading of collateral estoppel, and the superior
courts are given a great deal of discretion to decide whether or
not to accord any collateral estoppel to these protective order
proceedings. The latest ruling is a case from August 2015.
Another case law point, when a superior court, in the custody
case, places a limitation on visitation, it has to establish a
plan for how that supervision requirement of limitation is going
to be listed. It is automatically supposed to be a part of what
a superior court does when it says it is imposing a restriction
on visitation, and the judge explains the steps necessary to get
that remedied, he explained. In his experience, he said, there
are two types of parents when they receive such an order, one
type goes through whatever hoops are necessary to have a
relationship with their children and the other parent decides
they will not let anyone tell them what they have to do before
they can reestablish a relationship with their children. He
remarked that it is the latter situation that tends to draw on
for inordinate periods of time. People willing to go through
the hoops can get the limitations lifted, usually within a
shorter period of time, he said.
5:00:02 PM
MR. HARRINGTON opined that if someone is served with a 20 day
order they do not have to wait for the court's scheduled follow-
up hearing and they can ask to have the hearing moved up if they
feel it is necessary to get the issues for the long-term
protective order remedied earlier. He offered appreciation to
the legislature for putting this much thought into the subject
and is grateful that everyone is focusing on these issues
because it is such a significant problem in Alaska. He stated
he does not support the approach taken by this bill and in
particular, the committee substitute currently before this
committee.
5:01:30 PM
CHRISTIN PATE, Legal Program Director, Alaska Network on
Domestic Violence and Sexual Assault (ANDVSA), advised that
ANDVSA is in opposition to HB 334. She explained that the
program offers civil legal assistance, primarily in family law
cases, to victims of domestic violence and sexual assault
statewide. Additionally, it provides legal advice and counsel
to advocates at its 23 member programs and affiliates who work
with victims and children through daily and legal proceedings.
She advised she has been practicing family law since 1994 and
has worked with thousands of victims of domestic violence (DV)
who were litigating through the custody process. She advised
she had submitted a lengthy written opposition to the original
bill and that ANDVSA has even more concerns about the committee
substitute before the committee. She offered that she echoes
everything Mr. Harrington stated and does not want to repeat his
points, but the committee substitute makes domestic violence,
child abuse, and neglect, harder to prove in a custody case than
any other issue and it brings the state to a standard lower than
prior to 2004. The rebuttable presumption law was enacted to
protect Alaskan children from the harmful effects of exposure to
domestic violence. The Alaska Network on Domestic Violence and
Sexual Assault (ANDVSA) wholeheartedly agrees with the sponsor's
statement that fathers are a critical part of a child's life,
but most importantly it is vital for a child to have two healthy
parents. In homes where there has been domestic violence that
is not possible. She noted that Alaska ranks in the top ranks
for domestic violence and sexual assault nationwide, and as of
2013 there are 1.4 times the national average for child abuse
and neglect. It is known that the children who grow up in homes
where domestic abuse is present are subject to the
intergenerational cycle of abuse. Additionally, when children
witness domestic violence in their home they are at risk that
they will be killed or injured by the violence, and their
emotional, physical, and mental health will be detrimentally
affected. The effects of this violence includes a wide range of
physical, social, mental, and educational defects which take a
heavy financial and emotional toll on Alaska. Violence doesn't
end when the relationship ends, separation is often the highest
time of lethality risk for victims and their children because
abusers are struggling to maintain the power and control they
have exerted in the relationship, she said.
5:04:24 PM
MS. PATE explained that the rebuttable presumption against
awarding a parent joint or sole custody passed in 2004, and was
enacted to ensure that courts made consideration of domestic
violence a priority in deciding custody of children. Prior to
the enactment of the law, domestic violence was just one of the
nine best interest's factors that courts could consider. The
best interest's factors are things that the court is supposed to
review and make findings about if there is evidence of it before
the court. The court then has discretion to apply those "so by
making domestic violence by clear and convincing evidence, the
hardest factor to prove, we've made domestic violence harder to
prove than anything else in the case." The 2004 legislature
heard testimony regarding victims and children killed by abusers
during a custody case, given the enormity of the problem in
Alaska, making DV one of the nine best interest's factors was
not adequate protection for Alaska children. Now, by making it
harder to prove than anything else, it is less protective.
Previously, courts sometimes failed to hear evidence of domestic
violence, minimize the importance of it, or failed to put in
place rehabilitative programs for a parent who has committed
domestic violence. She opined that it is surreal for her to
hear some of the testimony today because having litigated these
cases in courts for so long, ANDVSA has found it is hard to
prove domestic violence. It is still a private issue, it's
clouded in shame and fear, many victims never report to law
enforcement, they don't tell family or friends, they don't go to
a doctor, they make excuses for their injuries when they go to a
doctor, and they're not great at preserving evidence. Often it
is the abusive partner who might be savvy at building a history
of evidence to show that the other party is crazy, or destroy
any evidence of the violence. Therefore, when a victim goes to
custody court she often doesn't have an arsenal of evidence to
corroborate her story. Many of these cases rely upon "he said,
she said" so a clear and convincing evidence standard, even in
the best interest's factors, will make it especially hard to
prove domestic violence, she advised.
5:06:56 PM
MS. PATE referred to Sec. 7 of the bill and said the committee
substitute not only removes protections for children, it makes
it harder to prove domestic violence. As an advocate, they are
often asked why victims stay in violent relationships, it is
known that victims stay because they believe they have no way
out, no financial means, fear of being killed if they leave, or
they've been told by their abusive partner they will lose
custody of their children if they leave. By making it harder
for victims to reach out for help and obtain a custody order
that is protective of children, the state is ensuring that
children will grow up exposed to domestic violence. ANDVSA
urges the committee to oppose this legislation.
5:07:34 PM
MS. PATE referred to Mr. Harrington's testimony regarding case
law since 2004 regarding rebuttable presumption, and agreed
there has been no less than 20 cases by the Alaska Supreme Court
interpreting it, and many have restored some discretion to the
courts. She said in order to overcome the presumption,
basically a parent has to show that they are not abusing
substances, that they've done some type of rehabilitative
program - there is not a requirement that they do a batterer's
program or a certified batterer's program because it was taken
out under Stephanie F. v. George C., [270 P. 3d 737 (2012)].
They just have to do some type of program such as counseling,
alcohol or anger management programs, it is whatever the court
believes is necessary for the parent to overcome whatever their
history of domestic violence is. And that it's in the best
interests for that parent to have custody based on the history
of domestic violence. Also, she related, if there is not a
batterer's program in a certain location, the court does not
have to put that requirement in place. She said she has heard
about the high cost of supervised visitation and how hard it can
be, and pointed out that in most of their cases it is a family
member or friend performing the supervised visitation. Courts
can be incredibly liberal in their interpretation of what
supervised visit is, for example, she recently spoke with a DV
victim involved in a custody case who advised that the judge had
ordered that the presumption applied. She explained that this
was a case where the abusive parent had come to the house drunk
and started strangling the victim in front of her mother and
some other people, and their 3 year old child took a stick and
started hitting the parent who was strangling the mother. When
the police were called [the abuser] hid under the bed in the
house, and was arrested. At the custody hearing the judge found
that it was a serious incident of domestic violence and applied
the rebuttable presumption, but allowed that parent to go to an
alcohol program as their rehabilitative program, and allowed the
father's live-in girlfriend to be the supervisor of his 3 day
visit each week, which included over-nights.
5:10:10 PM
MS. PATE related that there as a wide range of what is
considered supervised visitation in this state. Alaska has too
few attorneys representing victims of domestic violence and
sexual assault, her agency has three attorneys and a small army
of pro bono attorney to assist, but the agency still has to turn
away one in two cases. If someone does not have an attorney it
is difficult to prove domestic violence, if the agency is
involved in a case and the other parent is indigent, they have a
right to a free attorney. She said her agency believes that is
incredibly important, that these cases involve very fundamental
rights, rights to your child, rights to the upbringing of your
child, and that everyone should have due process in court when
that decision is being made. In addressing the jurisdictional
statement, she said that one of the important things that has
happened over the last few years, especially in Anchorage, is
when there is a domestic violence protection order filed, that
case is consolidated with the divorce or custody case so the
divorce or custody judge, who is making decisions about the
children in the long term, makes the decision about the domestic
violence protection order. Therefore, she pointed out, the
judge has the full information about the family in making a
decision as to whether domestic violence has occurred and how
that will affect the custody case down the road. She thanked
the committee for its time and expertise.
5:11:57 PM
BRENDA STANFILL, Executive Director, Interior Alaska Center for
Non-Violent Living, noted that [Version I] Sec. 2 and Sec. 7,
appears to still include a conviction, so it is either clear and
convincing or has been convicted of a crime of domestic
violence. She referred to Sec. 2 [AS 25.20.061, page 1, lines
13-15, and page 2, line 1] which read:
If visitation is awarded to a parent who the court
finds by clear and convincing evidence has a history
of perpetrating [COMMITTED A CRIME INVOLVING] domestic
violence or been convicted of a crime involving
domestic violence, against ...
MS. STANFILL said the same language is located in Sec. 8, and
opined this is taking out the rebuttable presumption, it's
moving it into something the court can consider, and it's moving
it to clear and convincing evidence or a conviction. Both of
those create some challenges, she explained, when trying to
prove domestic violence has occurred, or oftentimes as the
sponsor said, the state does not want people to be considered to
be a domestic violence offender because something has happened.
Putting someone in fear is a domestic violence crime that could
happen one time and a person could plead "no contest" because
they believed they put someone in fear and now this would
automatically go against a person as now being a domestic
violence offender. She said she disagrees that this changed
much from the first bill which required a conviction. In 2004,
this rebuttable presumption was important to her agency because
she had two wonderful women dead. She related that in 2001, the
two women within six weeks of each other were both murdered by
their abusive partner while trying to accommodate visitation
with their children. The first woman's final words in court,
begging the judge, to please put something in place to help
protect her in these exchanges because she was very fearful that
she was going to be killed." This judge told her that she and
her abusive partner were both adults and to work it out. She
was murdered three days later and her child was in the next
room. She said these are the types of issues where each judge
rules on the bench having their own perspective, and their own
history and belief system. One of the reasons for the
presumption was to make sure the court prioritizes the issue of
domestic violence. Currently, the presumption reads that after
reviewing all of the evidence, the person does have the
presumption of being a domestic violence offender, the judge
sets out what the person must accomplish before sole or joint
custody can be awarded to the person. She pointed out that it
is known that domestic violence and divorce is one of the most
dangerous time due to the legalities, and that person losing
control over the person [technical difficulties]. Ms. Stanfill
opined there could be a discussion regarding what constitutes
history and what timing should be considered, but she likes this
version of the bill even less than the original version. She
urged the committee to go back to the bill drawing board to be
certain non-abusive parents do not lose contact with their
children. Along those same lines, she said, it is important to
ensure a priority is kept, when it comes to protecting Alaska's
children, to not live in homes where children will learn and
grow up to be a future generation of batterers.
5:17:42 PM
CORRINE VORENKAMP, Lead Staff Attorney, Alaska Center for Non-
Violent Living, said she shares the concerns and comments of Mr.
Harrington, Ms. Stanfill, and Ms. Pate, and she is also
concerned about the impact of HB 334 on the victims of domestic
violence, including children who are substantially affected by
domestic violence in their homes. She referred to the
requirement that there be a conviction and acknowledged that
this version does away with what had been raised before, but she
opined raising the standard of proof to a clear and convincing
standard singles out and elevates the burden of proof on what is
already a substantially under-reported and extremely difficult
crime to prove under any standard. One of the issues Ms.
Stanfill discussed was the lethality risk, and she noted that
the Center for Non-Violent Living as with Ms. Pate's program,
represents victims of domestic violence often in custody cases,
and most of their clients have a high risk of being killed by
abusers. The risks they face can include histories of having
been strangled, threatened with firearms, and repeatedly
threatened that they would be killed if they ever left their
abusers, and/or having their pets harmed or killed. She said
that only a couple of their clients have ever reported the abuse
to anyone and they served 56 clients last year, with only one
client's abuser convicted of a crime of domestic violence even
though there have been horrific abuses in the majority of the
cases they represent. Ms. Vorenkamp related that just last
year, Mandy Clemons applied for a protective order on her own,
but the court found that she had not proven there was domestic
violence, and even the ex parte order she sought was denied.
Ms. Clemons did later obtain counsel through Alaska Legal
Services Corporation and her attorney was capably attempting to
establish that the domestic violence presumption was applicable
and that visitation with her children should be supervised for
her safety and her children's safety. Meanwhile, her abuser had
unsupervised visitation before the custody trial on those issues
could be held. Ms. Clemons was killed in her child's presence
during the custody exchange. She advised that the trial has not
yet taken place, but pointed out that Ms. Clemon's batterer had
never been charged with a crime of domestic violence and had no
prior history. Ms. Clemons was unable to prove, even at the ex
parte level, an obviously true threat, she expressed.
5:21:30 PM
MS. VORENKAMP underscored the concern that these are already
tough cases, and singling out and elevating the burden of proof
will significantly impact real victims of domestic violence.
She urged the committee to reconsider the goals here and what
the legislation is trying to accomplish. She noted that the
rebuttable presumption is two prior crimes of domestic violence
proven to judge by a preponderance of the evidence standard, or
one that has caused serious physical injury, which is a high
standard under Alaska's statutes. It is defined in criminal law
statutes and basically requires severe and protracted impairment
of health or loss or function of a body member or organ. She
described that as a high level of injury, not necessarily a
broken bone, but one that significantly impacts someone's life
for a substantial period of time and the problem is in the
proof, she explained. She noted that Fairbanks judges
consolidate protective order proceedings, rarely apply
collateral estoppel to the protective order proceeding hearings
when those issues are contested in a custody case, and are still
having a difficult time establishing even sometimes severe
domestic violence.
5:23:23 PM
MS. VORENKAMP said the presumption statute currently requires
both a proof of those two crimes by the preponderance of the
evidence standard. She pointed out that even when that's been
proven, the judges have discretion, under the rebuttable
presumption statute, to not order supervised visitation if they
do not think it is necessary, or in the child's best interests.
The National Council of Juvenile and Family Court Judges in
1994, noted there should be a presumption that it's detrimental
to a child to be placed in a sole or joint custody with a
perpetrator of family violence. She explained that Alaska's
rebuttable presumption comes from research and information that
legal shared custody can be detrimental to the children,
harmful, and dangerous. When there is proven domestic violence,
the judges have discretion to fashion something different if
they do not think supervised visitation is appropriate. She
urged the committee to reconsider the changes here that would
make it so hard to prove domestic violence.
5:25:47 PM
ALLEN BAILEY, Law Offices of Allen Baily, said that he has 42
years of experience working with domestic violence victims, is a
former member of the American Bar Association Commission on
Domestic and Sexual Violence, and was chair of that commission's
Domestic Violence Committee. He related that he posted an
article from the House Health and Social Services Standing
Committee hearing on the website. He remarked, the original HB
334 [Version H] was a bad option with no reality-based purpose,
it appears to have been based on anecdotes for which the
committee only heard one side. However, he said, the committee
substitute for HB 334 [Version I] is truly a horrible idea
because it makes intimate partner violence, that can harm
children and its direct victims in long lasting ways, the least
important criterion for child custody under AS 25.24.150(c). He
said he found it amazing that that could be done by simply
inserting a clause requiring proof by clear and convincing
evidence of every part of the statute that refers to domestic
violence. It's interesting, he noted, that it goes from being
almost impossibly difficult under the original HB 334, to
something that degrades domestic violence to the least important
criterion, in statute, for the selection of child custody simply
by requiring a higher burden of persuasion of the court. He
noted there are few other kinds of civil litigation in which
that level of proof is required, one is child in need of aid
litigation, and certain parts of the court's findings. The
important issue here is that no order regarding custody of
children will be made without findings concerning whether or not
allegations of domestic violence have been proved by a
preponderance of the evidence. In the event the court makes the
finding that it is so proved, then the court takes some action
in pursuit of whether or not there's going to be a presumption.
He pointed out that the court must find at least two incidents
of domestic violence have occurred, or one incident involving
serious physical injury. The statute was written that way to
relieve people in the circumstances described by Ms. Koeneman
where she said she threw something in a moment of anger in a
domestic dispute. First of all, he related, if you throw
something and it isn't thrown at someone, it would only be a
domestic violence crime if it caused physical damage to the
object that is thrown or some other object - that would be
destruction of property. If it is thrown at a person, that is a
legitimate definition of a fourth degree assault if that person
is in fear. He drew the committee's attention to the materials
he deposited on the legislature's website for this bill, dated
March 24 and March 29, 2016, including an article published in a
peer reviewed journal, The Family Law Quarterly, entitled
"Prioritizing Child Safety as the Prime Best Interests Factor."
He described it as an accurate discussion of current research
concerning children in custody litigation.
5:32:28 PM
ALLEN LEVY, Physiological Associate, advised he is a recognized
expert on domestic violence and the effects of domestic violence
on children. When discussing domestic violence it is important
to not treat it as a unitary phenomenon because there are four
recognizable types, and he agreed with supporters of the bill
that the current definition of domestic violence in the law is
completely inadequate. If the problem is to be solved, he
stressed, it is not with HB 334 as currently written in that it
requires a serious new look at domestic violence in making
Alaska's statutes accurately reflect the reality of domestic
violence. Mr. Levy read his testimony into the record, as
follows:
I testified previously on this bill in front of the
Health & Social Services Committee. I am deeply
troubled my testimony and the testimony of so many
others, experts on domestic violence and the victims
of domestic violence appear to have been ignored.
This bill still has legs and it is walking steadily in
the wrong direction. If this bill passes in its
current form, or with the substitution being
considered before this committee today, then I say
"Heaven forgive you for you know not what you do." It
seems as if there is momentum from a vocal special
interest group to support this bill. Please listen to
the real experts, those who are standing up to protect
the vulnerable and voiceless, the children who have
had to cower in the night listening to the violence,
and the survivors who at great cost and risk have
struggled to free themselves and their children from
this reign of terror. If you are inclined to ignore
those voices, if you find yourself tempted and even
seduced by the voices of those who are crying because
they can no longer batter and terrorize those whom
they should have been loving. The apologies of those
who are really only sorry that they got caught. The
voices of those who falsely play the victim then I say
to you, go ahead, pass this bill, pass this bill
please. Ignore the fact that Alaska has the highest
rate of domestic violence in the nation. Ignore the
fact that domestic violence costs this nation $5.8
billion annually. Ignore the fact that statistics
show that more than one in ten women in relationships
experience domestic violence every year. Ignore the
fact that those statistics significantly underreport
the actual number of domestic violence incidents.
Ignore the fact that homicide is the eighth leading
cause of death in Alaska and that 69 percent of those
deaths were linked to sexual assault or domestic
violence. This bill was put forward to support a
father who quote "inadvertently violated a restraining
order." Excuse me, ignore the fact that nobody
inadvertently violates a restraining order. Ignore
the fact that the sponsor of this bill apparently did
not bother to speak to this man's victims and that ...
victims at a court after hearing evidence found
actually needed protection. Ignore the fact that this
is special interest's legislation of the worst kind.
And please ignore the voices of the victims as the
supporters of this bill are.
I will share with you now the voice of one victim I
encourage you to ignore. The voice of one survivor of
domestic violence at the sentencing of the batterer
... the man who battered her and her children. This
is a woman who managed to get free of that batterer,
although he had previously never been convicted, she
was able to get some measure of protection for her
children under the statutes that this bill is seeking
to eliminate. But after the father successfully
rebutted the presumption under the current statute,
one of her sons came back from his father covered in
bruises from being beaten with a belt. The father was
able to plead to a significantly reduced charged.
Here are her words at the sentencing hearing: I am
here to speak on behalf of the victims of this man's
crimes, my sons, my husband, and myself. His charges
are on the record but he is pleading to less than what
he is charged with and much less than what he has
actually done. Two of his crimes were assaulting my
husband and assaulting my son. A key element of an
assault charge is fear in the mind of the victim. I
am here to say that our fear of this man is real and
present every day. Although today's hearing will put
a close in the formal proceedings, my life and the
life of my family will go on, and it will go on with
fear. He has put fear in our hearts and we fear that
it will not stop. The man you see before you is a man
of many faces. In court and to his many friends he is
charming, eloquent, a smooth talker, likable,
charismatic, and apparently sincere. But he has shown
in the past, and we fear he will continue to show to
us faces that he feels entitled by right to inflict on
us. To the son he beat black and blue he showed the
face of force, violence, and terror. To my husband,
he showed the face of threats and violence. To me, he
shows the face of domination and control. He stands
before you now, your honor, contrite and respectful
but we know in fear in our hearts that he is keeping
his other less honorable and more chilling faces
reserved for us in the future. He is a batterer and
such men known to the experts for what they truly are
do not easily give up their violent controlling ways.
Apparently the deal is done and my family and I must
accept the verdict of the court. But hear us, your
honor, and know that we will live in fear, and we fear
that we will be standing before you again on some
unknown future date, again the victims of this
batterer's unrelenting need to inflict domination,
violence, and control of those he has selected to be
his victims.
So please, committee, go ahead, pass this bill and
make it impossible for victims of domestic violence to
get protection and safety. Pass this bill and make a
parent's right to batter and terrorize more important
than a child's right to live in safety and security,
that "might makes right," and that the system favors
the powerful and cruel.
5:40:01 PM
FRED TRIEM, Attorney, advised he is 75 years of age, and is
actively practicing law, often in the area of domestic relations
law. He said he supports the original version [Version H] and
opposes the committee substitute [Version I], which was
undermined by the House Health and Social Services Standing
Committee. Thereby, violating the Satchel Paige law - "if it
ain't broke, don't fix it," which the House Health and Social
Services Standing Committee violated. He explained the wisdom
of legislation, as follows: Good laws express standards of
conduct in language that is concise and not ambiguous; bad laws
are ambiguous, loosie-goosie, amorphous and subject to
misinterpretation and disputes about the meaning. The original
version, he said, cured some major problems in Alaska's domestic
relations law in that it eliminates the bad vague phrase "a
history of perpetrating" and replaces it with a concise phrase
"convicted." Everyone knows the meaning of the word convicted,
it is a precise term. When a judge has a case with the issue of
whether a person has been convicted of a crime, a legal
assistant can go to CourtView and answer that question
immediately, he said.
5:43:40 PM
MR. TRIEM said that legislatures should try to refine the
language in laws to allow people interpreting them to know
exactly what is meant and avoid lengthy litigation. He advised,
within the Alaska Digest, Section "Words and Phrases," is part
of Alaska's legal history in which little snippets are listed
from Supreme Court decisions. He then turned to the meaning of
"clear and convincing evidence" and read a sound bite from an
Alaska case in 1994, which gives one meaning to clear and
convincing evidence. He then turned to the supplement from
2011, and said two more decisions are reported that give
different interpretations of clear and convincing, so it is not
a precise term. Within Black's Law Dictionary for every
definition in the dictionary, the Alaska Supreme Court has
issued three or four more. Therefore, clear and convincing
evidence, as used by the committee, is not an exact term and;
therefore, takes the state back to re-infecting Alaska's law
with an even worse version than before the original bill was
introduced. He offered that by introducing clear and convincing
just exacerbates the problem of vagueness. He said he is
advocating turning back to the original version of the bill and
use that as a launching pad for the discussion. The version
forwarded to the House Judiciary Standing Committee from the
prior committee, Sec. 7, would amend subsection (6) of AS
25.24.150(c) by removing one of the most important pillars of
Alaska's domestic relations child custody law. He explained it
is the requirement that the court consider the willingness and
ability of each parent to facilitate and encourage visitation
with the other parent. That's a major factor when giving
custody to one parent, to be sure other parent will be able to
see the children and, he described that as a terrible mistake.
CHAIR LEDOUX asked whether that was in Sec. 6.
MR. TRIEM said he is working off the committee substitute
Version N, page 4, Sec. 7.
CHAIR LEDOUX related that the committee is on Version I.
REPRESENTATIVE MILLETT noted that it is the same in both
versions, page 4, lines 29-31, to page 5, lines 1-5, which read:
(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];
5:47:35 PM
MR. TRIEM, in response to Chair LeDoux, agreed it is still
there, and offered that everything he said applies to Versions I
and N. He stressed to not emasculate this law by taking out the
words that would allow a court to consider the willingness ...
CHAIR LEDOUX interjected that is where she is getting confused.
REPRESENTATIVE MILLETT referred to page 4, line 17, "Sec 7. AS
25.24.150(c) is amended to read" and that everything in capital
letters is removed has been removed from this bill. Therefore,
on page 4, line 31, "EXCEPT THAT THE COURT MAY NOT CONSIDER THE
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]." It has been changed
to read ...
5:48:56 PM
CHAIR LEDOUX interjected that she saw that, but surmised that
Mr. Triem was confused because he believes the court was no
longer able to consider the willingness. She said she still
thinks Mr. Triem may be confused.
MR. TRIEM said he was not willing to admit confusion, and
referred to the importance of this provision noting that the
language has been bracketed and that the committee is taking out
the prior committee's recommendation, which is to remove the
language Representative Millett read.
CHAIR LEDOUX agreed, except that that is taking out that the
court may not consider the willingness and ability if one parent
has engaged in domestic violence, and it's going back to just
plain, "(6) the willingness and ability of each parent to
facilitate and encourage a close and continuing relationship
between the other parent and the child."
MR. TRIEM confessed error because Version N, which he received
from the other committee, deletes more of the good language. He
then realized that the drafting error had been cured and he
withdrew his objection to the language. He thanked Chair LeDoux
for pressing him on that issue.
5:50:52 PM
MR. TRIEM stated that "this hurriedness that you're experiencing
here illustrates that the problem that 90 days is not enough,
and I respectfully urge you ..."
CHAIR LEDOUX interrupted and said the committee is staying on HB
334.
5:51:0 PM
STEVEN SAMUELSON offered that he has experience with people
working with him on a boat, or away from families, going through
a divorce, and the effect it has on them. Alaska is a resource
state and people can be out on the water for a month at a time.
He said the bill pertains to the child which is the most
important, and he likes that it puts both individuals on the
spot and makes it a level playing field. He said he could see
someone out in the field trying to work with a lawyer and set
dates could hinder their effectiveness to fight in court and
defend themselves. People in the field have expressed
frustration and tears because the other parent plays games, and
they are out in the middle of the ocean trying to bring in
income to pay for the proceedings, pay for the divorce, and pay
to be sure they can see their child. He pointed out that the
first person that runs out of money is done. He related that
people in bad relationships, or were in previous domestic
violence relationships, tend to continue to get into those
relationships. He continued that just because the parent with
the child was in a bad relationship that doesn't mean they are
not going to get back into another relationship, which affects
the child from a different individual.
MR. SAMUELSON said he could have been charged with domestic
violence but because his wife was honest, he was not charged.
5:58:24 PM
CARMEN LOWRY, Executive Director, Alaska Network on Domestic
Violence and Sexual Assault (ANDVSA), advised that as the
representative of the Alaska Network on Domestic Violence and
Sexual Assault (ANDVSA) it is opposed to the original bill
(Version H) and is further opposed to the committee substitute
(Version I).
5:59:13 PM
REPRESENTATIVE LYNN asked what she is in favor of.
MS. LOWRY responded that that answer "would take more time than
I have right now."
CHAIR LEDOUX closed public testimony after ascertaining that no
one further wished to testify.
[HB 334 was held over.]