Legislature(1993 - 1994)

03/17/1993 03:00 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  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.                                            

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