01/29/1998 03:07 PM House HES

HB 335 - UNIFORM INTERSTATE CHILD CUSTODY ACT                                  
                                                                               
Number 0179                                                                    
                                                                               
CHAIRMAN BUNDE called the meeting back to order at 3:24 p.m.  He               
announced the first item on the calendar was House Bill 335, "An               
Act replacing the Uniform Child Custody Jurisdiction Act with the              
Uniform Child Custody Jurisdiction and Enforcement Act; and                    
amending Rules 4 and 62, Alaska Rules of Civil Procedure, and Rule             
205, Alaska Rules of Appellate Procedure."  He asked Patti Swenson             
to come forward to present HB 335.                                             
                                                                               
Number 0252                                                                    
                                                                               
PATTI SWENSON, Legislative Assistant to Representative Con Bunde,              
stated that House Bill 335, The Uniform Child Custody Jurisdiction             
and Enforcement Act (UCCJEA) addresses the problem of interstate               
child custody.  She emphasized the bill only addresses interstate              
child custody, not custody within the state.  She commented that               
often it is the children who suffer during a custody dispute                   
between adults.  This legislation works in the best interest of                
children.  This Act revises the UCCJEA by enhancing rules for                  
custody determinations and by adding new enforcement provisions.               
Specifically, it will provide a quick and inexpensive process for              
parents to enforce child custody orders and visitation                         
determinations across state lines, and eliminate the conflicts and             
problems which surround interstate custody and visitation orders by            
adding uniformity to the law.  Soon this Act will be adopted by all            
50 states.  When it is, parents will not be able to use their                  
children as pawns in their disputes.                                           
                                                                               
Number 0348                                                                    
                                                                               
MS. SWENSON further stated this Act will provide uniformity of law.            
Without uniformity, the child custody waters will be muddied in                
many ways.  First, the cost of an enforcement action will be                   
greatly increased.  Second, parents will continue to lack certainty            
of outcome in a case and third, the lack of uniformity between                 
various state laws often turns enforcement of an interstate child              
custody or visitation order into a long and drawn out process, in              
which one parent can delay visitation or custody indefinitely.                 
                                                                               
Number 0383                                                                    
                                                                               
MS. SWENSON concluded this legislation is important for all those              
who will be involved in custody disputes.  Children will benefit               
from the security it will give them and parents will not be able to            
manipulate court orders in an effort to gain custody of a child.               
She thanked committee members for their consideration of what she              
believes to be an important piece of legislation.                              
                                                                               
CHAIRMAN BUNDE asked Deborah Behr from the Department of Law to                
come forward.                                                                  
                                                                               
Number 0420                                                                    
                                                                               
DEBORAH BEHR, Assistant Attorney General, Legislation and                      
Regulations Section, Civil Division, Department of Law, and Uniform            
Law Commissioner for the state of Alaska, informed committee                   
members that she was one of nine attorneys nationwide selected to              
be on the committee to draft this Uniform Custody Jurisdiction and             
Enforcement Act, which she considers to be a drastic improvement in            
the law.  This Act will make it considerably easier to determine               
what state has the ability to modify the order and what state has              
the ability to enforce the order.                                              
                                                                               
Number 0463                                                                    
                                                                               
MS. BEHR pointed out that the goal of the committee was to get a               
bill whereby an individual would not have to hire an attorney, but             
could go to the court with a "canned form and say I have an order              
to see my child; I'm being denied that.  Here are the facts.  I'm              
not involved in any other domestic violence proceeding or whatever.            
I want to see my child and the court's obligation is to enforce                
that order."  Visitation to a child is a very important right and              
it should be exercised quickly.  When visitation is denied, it has             
a dramatic impact on a child.                                                  
                                                                               
MS. BEHR noted the people appointed to the committee were very                 
middle-of-the-road-type people who were aware that if the Act was              
drafted to one side or the other, it wouldn't be passed by the                 
legislature and in the end, would do no good.  Domestic violence               
groups, family law judges, and fathers' rights groups all observed             
the work of the committee.                                                     
                                                                               
Number 0548                                                                    
                                                                               
MS. BEHR said the importance of all states having the same terms is            
to ensure uniformity of the rules among the states.  She cited a               
practical example:  "The typical case will be a marriage in Alaska;            
people have been here five years; they get a divorce; the custodial            
parent moves out of state - maybe to Washington for four months,               
moves down to California for four months.  What the question is now            
is they come in at the end of eight months and the noncustodial                
parent says 'I'd like to see the child for Christmas visitation or             
holiday visitation; I have a right to it in my order' and the                  
custodial parent for one reason or another says 'no'.  This bill               
will answer what court has a right to enforce the order, what court            
has an obligation to enforce the order, and what court has the                 
obligation - if someone has a concern - to modify the order."                  
                                                                               
Number 0590                                                                    
                                                                               
CHAIRMAN BUNDE asked which court will have that right?  It was his             
understanding that it would be the court of jurisdiction where the             
original custody was determined.                                               
                                                                               
MS. BEHR responded that based on her example, Alaska would make                
that decision if HB 335 becomes law.  However, she suspects that               
under the current law - without this modification - California                 
would make the decision.  She further explained that a parent who              
retains the services of an Alaskan attorney, not licensed to                   
practice law in California, would bear the cost of not only the                
services of the Alaskan attorney, but the services of a California             
attorney as well to enforce the parental right in a valid court                
order.  However, if the other parent believes there is a domestic              
violence issue, there are ways to bring that to the attention of               
the court.  She assured committee members that children are                    
protected.                                                                     
                                                                               
CHAIRMAN BUNDE acknowledged that Anchorage and Valdez were on                  
listen-only teleconference.                                                    
                                                                               
Number 0655                                                                    
                                                                               
REPRESENTATIVE JOE GREEN advised that he had introduced a similar              
piece of legislation, and the dialogue which took place in trying              
to move that bill, indicated there are a number of custodial                   
parents that will move out of state either from fear of or actual              
domestic violence acts.  Often times the feeling is they don't have            
a strong enough case, and their only protection is to leave the                
state.  He said, "The complaint is because they either perceive or             
in some cases don't have - but they'll make that issue - the                   
noncustodial parent doesn't have right."  He wondered if both those            
concerns would be addressed in this legislation.                               
                                                                               
MS. BEHR responded affirmatively.  She said that generally, the                
enforcing court has an obligation to respect the order, not modify             
the order, and to enforce it.  The court can take emergency                    
jurisdiction when facts are presented that an emergency exists.                
The facts presented by Representative Green do not rise to the                 
level of an emergency order in her opinion.  She would advise that             
custodial parent to go back to the home state, inform the judge of             
the concerns, and then modify the order through the ordinary course            
of business rather than deny visitation.                                       
                                                                               
Number 0740                                                                    
                                                                               
CHAIRMAN BUNDE said his perspective, based on correspondence                   
received, is that often - as unjustified as it may be - the excuse             
for not paying child support is the lack of visitation rights.                 
Because there would be some uniformity, he wondered if there was a             
possibility that unjustified reason would go away.                             
                                                                               
MS. BEHR advised that the Uniform Law Commissioner Conference, of              
which she is a member, came out with the Uniform Child Support Act.            
Several years ago when she started doing family law, an individual             
could easily avoid a child support obligation by crossing state                
lines.  Now, however with states banning together, it's difficult              
to avoid a child support obligation by crossing state lines.  She              
is hopeful this legislation will bring about that same kind of                 
predictability in visitation.                                                  
                                                                               
Number 0822                                                                    
                                                                               
REPRESENTATIVE GREEN said, "Following up on my earlier question,               
then if the noncustodial parent is denied access to visitation                 
because of perception - you indicated you would advise the                     
custodial parent to get this all cleared up in the court of                    
jurisdiction - but if on the other hand the person fled or whatever            
you call it - what recourse would the noncustodial parent have?"               
                                                                               
MS. BEHR clarified the situation being discussed was that of a                 
custodial parent not returning a child for holiday visitation in               
Alaska.                                                                        
                                                                               
REPRESENTATIVE GREEN confirmed that.                                           
                                                                               
MS. BEHR indicated the Act has provisions and one remedy is that               
the California judge could order the parent to bring the child into            
court.  If the parent does not comply, the Act contains a provision            
to send troopers to get the child.  She added this is considered to            
be an extraordinary remedy.  It is her hope that most parents will             
know that the orders have to be followed and they will be held                 
accountable.  The goal is to have the order followed and to get the            
order modified if a problem does arise.                                        
                                                                               
Number 0906                                                                    
                                                                               
CHAIRMAN BUNDE referred and page 5, line 1 and asked who is                    
entitled to be heard in the referenced hearing.                                
                                                                               
MS. BEHR pointed out this is when the initial custody determination            
or when a modification is being made; it's not the enforcement                 
action.  This provision gives notice of opportunity to all persons             
who are entitled to notice under the laws of the state.  In other              
words, it would look to the laws under the state of Alaska which to            
the best of her recollection, would be any parent, any person who              
has a right to visitation, in some cases, grandparents, and any                
custodian.                                                                     
                                                                               
CHAIRMAN BUNDE referred to page 6, line 9, which establishes                   
procedures for an Alaskan court to decline jurisdiction, and asked             
Ms. Behr if she could further explain that section.                            
                                                                               
MS. BEHR replied, "Yeah, that's very helpful because I think at                
some point -- say you have a one-year-old and there's a divorce, 15            
years later, if the -- for example, the contacts with the state of             
Alaska are very limited, the state of Alaska could come in and say,            
'Look, we are no longer' -- a parent in the California example,                
could petition the state of Alaska court in saying, 'This is not               
the appropriate place; we have the better information in                       
California.'  The Alaska court is the one that would make that                 
decision.  The Alaska court could look at the information that's               
here listed in (b) and decide whether or not it's appropriate to               
decline their rights of making this decision.  And there's some                
interesting things here, like the domestic violence groups wanted              
to be absolutely certain on page 6, line 19 - 21, that domestic                
violence was one of the first issues that the judge looked at."                
The length of time outside the state, the distance between the                 
courts, relative financial circumstances  and other factors go into            
a decision of whether Alaska should decline jurisdiction.                      
                                                                               
Number 1038                                                                    
                                                                               
CHAIRMAN BUNDE referred to page 9, line 25, Enforcement under the              
Hague Convention, and asked if that was to address international               
problems.                                                                      
                                                                               
MS. BEHR pointed out the Hague Convention controls the United                  
States' agreements with other countries and essentially allows a               
state to enforce a Hague order.  There are rare occasions when a               
child is taken across international lines by a parent not born in              
the United States.                                                             
                                                                               
Number 1072                                                                    
                                                                               
CHAIRMAN BUNDE referred to page 12, line 16, which sets out the                
procedures for an Alaska court to expedite enforcement and asked               
Ms. Behr to explain the current procedures.                                    
                                                                               
MR. BEHR replied, "Yes, I would like to talk about that because                
this is one of the advantages of this bill because each state has              
their own procedure and as I was sitting on this conference and                
having people watch us from all over the United States -- Texas has            
a habeas corpus proceeding -- what we'd do in the state of Alaska              
if I was representing a noncustodial parent and you would go in for            
an order to show cause - why the custodial parent was not allowing             
visitation - and they do not have expedited requirements that they             
go on the court calendar quickly, so the court would take them --              
they take them on a quick basis, but this is a clear statutory                 
mandate that these be treated on an expedited basis.  And then the             
court proceeding is very limited because the judge in the other                
court -- the other state is only to look if there's a valid order,             
has it been modified, is there anything in the petition that shows             
there's a domestic violence order that was entered or something                
like that - and then what is the remedy that that person that's                
being denied visitation wants.  That's all the court can look at.              
So, it should go a lot quicker.  What happens now in a lot of child            
custody cases where if someone goes into enforcement, is they bring            
up what I call the smoke issues -- they relitigate the divorce                 
issue, they relitigate whatever, and a court cannot do that quickly            
on their calendar -- to redo a whole trial.  And the goal is the               
order is to be respected or - in an enforcement action.  That's the            
goal of it."                                                                   
                                                                               
Number 1156                                                                    
                                                                               
CHAIRMAN BUNDE asked Ms. Behr to address page 14, line 6, where a              
child would be endangered by the enforcement of an order and page              
15, line 5, which speaks to the exceptional remedies in emergency              
situations where physical harm could come to the child.                        
                                                                               
MS. BEHR considers this to be very important.  She is aware that               
people do not have the money to hire an attorney to keep the order             
up to date.  She stated, "What we wanted to make sure is if a                  
parent had an old order that didn't represent the -- the absent                
parent just got out of jail for some kind of domestic violence or              
whatever -- and the mother can bring -- the custodial parent can               
bring this into court, the court on its own can take jurisdiction -            
kind of like a CINA action but it's not - they could take                      
jurisdiction of it and then decide that it was not appropriate to              
enforce the order under these unusual circumstances.  The expedited            
-- the exceptional warrant is to deal with the situation that                  
Representative Green was talking about where they got a valid order            
but the person refuses to cooperate.  And that's when the judge can            
send the troopers out."                                                        
                                                                               
REPRESENTATIVE GREEN inquired if in that scenario the person is out            
of state, could the court of jurisdiction in that state  actually              
intervene for the state court of Alaska.                                       
                                                                               
MS. BEHR noted the other state could ask for Alaska's assistance or            
Alaska could ask for the other state's assistance.  She added that             
one of the problems is that people can move from one state to                  
another very quickly.                                                          
                                                                               
Number 1252                                                                    
                                                                               
CO-CHAIRMAN BUNDE referred to page 16, line 1, relating to costs,              
fees, and expenses and asked Ms. Behr to address that section.                 
                                                                               
MS. BEHR remarked that Alaska has an unusual rule for prevailing               
party in attorney fees cases; most states do not.  This legislation            
is designed as an encouragement for other states to take the Alaska            
rule which is to award attorney fees to prevailing parties when an             
enforcement order is not followed.  She commented that it is "an               
extra hook" to get people to follow the orders because of the costs            
involved.  She directed the committee's attention to page 16, line             
8, which says that a judge can decide not to award costs, fees, or             
expenses if it is clearly inappropriate.                                       
                                                                               
Number 1299                                                                    
                                                                               
REPRESENTATIVE GREEN inquired if all the states are required to                
comply with the provisions, what will the state of Alaska gain by              
passing this legislation instead of letting it take its course.                
                                                                               
MS. BEHR said, "It's not -- maybe I should be clearer.  This is not            
an area where Congress will act like they did in child support,                
where Congress said -- this is an area where the state -- child                
custody is a very parochial state issue -- which is when we                    
designed the act, we made sure we didn't get into things like                  
grandparent rights, stepparent rights because each state has their             
own thing with what kind of rights they want to give to people and             
so in order for us to join this, we have to pass the Act."                     
                                                                               
REPRESENTATIVE GREEN questioned the situation where one state has              
adopted the Act and the other has not.  He asked, "Does our having             
adopted it take precedent in that other state to have them enforce             
our orders?"                                                                   
                                                                               
MS. BEHR responded it would not trump the other state's law, but               
the expectation is that other states will adopt it.  In the last               
week, five states have introduced this legislation which indicates             
to her that other states are seeing a need for it.  She stated,                
"There'll be a transition period.  The existing law -- we'll be                
able to enforce our orders so you don't have to worry about issuing            
an Alaskan order that will not be enforceable; it will be                      
enforceable.  It's just these extra benefits that we have here - we            
won't be able to use them with everybody."                                     
                                                                               
Number 1380                                                                    
                                                                               
CHAIRMAN BUNDE summarized the intent of HB 335 is to reduce the                
opportunity or incentive for noncustodial kidnaping; where children            
are used in the battle of the ongoing unsettled problems between               
the parents.                                                                   
                                                                               
CHAIRMAN BUNDE announced HB 335 would be held in the House Health,             
Education and Social Services Committee.