Legislature(1993 - 1994)
03/17/1993 03:00 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 122: CHILD CUSTODY PROCEDURES Number 023 CHRIS CHRISTENSEN, STAFF COUNSEL for the ALASKA COURT SYSTEM, testified in Juneau on HB 122. He said the bill was introduced by the House Judiciary Committee at the request of the Alaska Supreme Court. He stated that while it should be a simple, noncontroversial bill, anything dealing with child care attracts attention. He read from his February 28, 1993, letter to the co-chairs of the House Health, Education and Social Services Committee (which is on file in the committee room). The letter summarizes the history of the state's mediation statute. A task force on mediation in 1990 recommended the statutory change contained in HB 122. When a court considers granting shared custody of a child to divorcing parents, he said, the court had to consider factors including the child's preference and needs, the stability of the home environment, and any findings of a neutral mediator. MR. CHRISTENSEN said HB 122 proposes to eliminate the requirement that a court consider the findings of a neutral mediator. The task force considered that the statute endangers the mediation process and contradicts the state Supreme Court's majority view that mediation communications should be confidential, he said. He also said that the court did not want mediators to make recommendations about how to resolve disputes, but to guide both sides to a mutual decision. He stated the basic problem was that the drafter of the statute confused mediation with arbitration. He defined an arbitrator as a third party who heard disputes and recommended to a judge which side should prevail. He defined a mediator as a facilitator who helps two sides resolve differences, if possible, but who makes no recommendations to a judge. Number 080 REP. VEZEY asked if the state Supreme Court often asked the legislature to repeal a law. MR. CHRISTENSEN answered that the constitution directs the Supreme Court to administer the judicial branch of government, and each year, the court submitted four or five bills, usually through the Judiciary Committee, which are usually technical changes to statutes directly affecting the courts. The court did not request changes concerning public policy, as those laws are outside its purview, he said. Requests for changes in law, such as the one contained in HB 122, are usually narrowly defined changes, he said. He noted that the bill arose from a specific legislative directive to deal with the issue. Number 106 EMIL PORTSCHELLER JR. spoke via teleconference from the Mat-Su on HB 122. He asked whether other public agencies had submitted testimony on HB 122, and said he would prefer to wait and testify after them. Number 127 VINCENT VITALE, an attorney in anchorage with 20 years' experience, half of that in family law, testified via teleconference from Anchorage, commenting on HB 122. He said he did not think a mediator's communications in a matter of family law were privileged, and that a judge could order a mediator to testify. He said some judges have ruled that the best interests of a child in a custody case overrode the confidentiality of a relationship between a patient and a psychologist or counselor. He said that, in the absence of a specific law, a mediator's communications would not be protected from a judge's order to testify. He agreed with Mr. Christensen that a mediator's communication ought to be kept confidential. MR. VITALE said he hoped HB 122 would confirm the distinction between a mediator and a guardian ad litem, under title 25.23.310, so that there was no inference drawn that advocates of children in divorce cases did not have free access to the court. He said the definition of mediator was clear, but it might be good to include it in the legislative history. He said if the committee wanted the statute to shield mediators from involvement in the litigation process, they should specifically state that parties entering mediation are guaranteed confidentiality. He also suggested soliciting input from three organizations: the Alaska Psychological Association, the Alaska Bar Association (ABA)'s Family Law Committee, and the Alaska Association of Family and Marital Therapists. Number 176 CHAIR BUNDE asked Mr. Vitale if he supported HB 122 in general. MR. VITALE said he had no problem with the bill as written, but he was offering suggestions to expand it. CHAIR BUNDE asked him to submit his testimony in writing. Number 188 REP. VEZEY asked if Mr. Vitale and a client would talk to a mediator knowing that the mediator might be forced to testify against his client in court. MR. VITALE answered that the lawyer was not involved in mediation. He said he would send a client to mediation with the knowledge that a mediator could be subpoenaed. He said he would prefer that a client could enter mediation with a guarantee that the proceedings were confidential. Number 210 REP. VEZEY repeated his question. MR. VITALE answered that sometimes mediation was preferable to litigation, because litigation discouraged parties to a dispute to make mediation work. Number 233 REP. VEZEY asked whether Mr. Vitale was testifying that HB 122 would be a disincentive to mediation. MR. VITALE said the bill was a step in the right direction, as it took the mediator out of the loop. He suggested again that the committee may want to talk with the ABA to consider giving mediators the confidentiality they lacked. REP. VEZEY remarked that the legislature could not override constitutionally protected privileges. MR. VITALE said there was no recognized privilege for a mediator, and he was not suggesting creating a new kind of privilege. He said the policy of the legislation ought to encourage mediation by granting mediators confidentiality. REP. VEZEY asked whether the legislature could determine for the judiciary what was privileged or not. MR. VITALE said he would not recommend the committee take action without consulting with the organizations he mentioned earlier. He again encouraged confidentiality, not a special privilege, for mediators. Number 255 MR. PORTSCHELLER testified in opposition to HB 122. He said the judiciary should keep in mind the best interests of children. He disputed Mr. Christensen's claim that HB 122 was a noncontroversial bill. He said the judiciary should not propose laws in the legislature. He opposed removing the requirement that a court consider a neutral mediator's findings and recommendations when awarding shared child custody. He said such statutes protect the interests of children, but do not include precise requirements that the courts follow recommendations from mediators or arbitrators in child custody cases. He wanted the law to require the courts to take note of such information for later reference. He said a statute that is little-used is not necessarily nonfunctional. He said shielding mediators was not an issue in HB 122, but requiring in statute the use of mediators in child custody cases worked toward the best interests of children. He suggested law to require judges to outline how they used information provided to make a child custody decision, including information from a mediator. He said the bill was a political move by the judiciary. He asked the committee not to pass HB 122, but to improve the court system's treatment of children in child custody cases. Number 335 CHAIR BUNDE asked Mr. Portscheller if he officially represented any groups. MR. PORTSCHELLER said he did not officially represent any group, but he had spoken with the Alaska Family Support Group, the Area-wide Community Service Council in the Mat-Su, and people "in the legal realm." Number 343 REP. NICHOLIA asked Mr. Portscheller to have those groups submit testimony for themselves. MR. PORTSCHELLER repeated that he was not officially representing any group, but his testimony agreed with their viewpoints. CHAIR BUNDE invited him again to submit his testimony in writing. Number 356 REP. VEZEY asked Mr. Portscheller his opinion of how the mediation process was supposed to work in child custody cases. MR. PORTSCHELLER said mediation can be used long before litigation to work out many points of conflict with less aggravation to both sides. He encouraged more employment of mediators and less interference by judges. Number 400 REP. G. DAVIS encouraged Mr. Portscheller to provide written testimony on HB 122 to the House Judiciary Committee. He asked if Mr. Portscheller objected to passage of the bill to the House Judiciary Committee. Number 410 MR. PORTSCHELLER said he had questions about the process by which the bill was presented to the legislature. He said he would have wished to hear more testimony from various interested organizations and individuals, and would have wished more public notice of the possibility of testifying by the public. Number 427 CHAIR BUNDE said the House Health, Education and Social Services Committee (HESS) had met the statutory five-day notice requirement. He said teleconferences are not done by invitation only; the public is always encouraged to participate, and he took offense at the implication that access to the HESS Committee had been restricted. He encouraged Mr. Portscheller and others to participate in the Judiciary Committee meeting by teleconference. MR. PORTSCHELLER said those in the Mat-Su had been told the teleconference was by invitation only, which gave rise to questions as to how to best provide information. Number 447 REP. G. DAVIS said the committee was concerned with the process and was looking for ways to improve it. CHAIR BUNDE, hearing no further requests for public testimony, closed public testimony on HB 122 and invited the committee's discussion on the bill. Number 451 REP. G. DAVIS moved passage of HB 122 from the committee with individual recommendations and asked for unanimous consent. CHAIR BUNDE asked for objections and, hearing none, declared HB 122 passed from the committee with individual recommendations. CHAIR BUNDE announced that the teleconferenced portion of the meeting was ended. He brought to the table the confirmations for various boards.