Legislature(2015 - 2016)CAPITOL 106
04/05/2016 03:00 PM HEALTH & SOCIAL SERVICES
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HB 334-CHILD CUSTODY;DOM. VIOLENCE;CHILD ABUSE 3:47:47 PM CHAIR SEATON announced that the next order of business would be HOUSE BILL NO. 334, "An Act relating to visitation and child custody." 3:48:30 PM CRYSTAL KOENEMAN, Staff, Representative Cathy Munoz, Alaska State Legislature, on behalf of Representative Munoz, prime sponsor of HB 334, reported that the committee recommendations had been taken into consideration and that she would provide a proposed committee substitute (CS) for review and approval. 3:49:31 PM The committee took a brief at-ease. 3:50:18 PM CHAIR SEATON brought the committee back to order. He reopened public testimony on HB 334, [which had been closed at the previous bill hearing on 3/29/16]. 3:50:56 PM KEELEY OLSON, Executive Director, Standing Together Against Rape (STAR), shared her background working against domestic violence and sexual assault since 1989. She testified in opposition to the proposed bill, as it did not provide the necessary protections for the victims of domestic violence and their children. She offered her belief that the requirement for criminal conviction was too high a standard to be placed on the victims of domestic violence when they were seeking civil and legal protections. She suggested that the rebuttal of presumption was a very effective tool to protect the safety of victims and children, and that much of the testimony by attorneys were complaints that this created havoc in the family law courts. She stated that domestic violence was a messy business, and was one of most underreported crimes in America. She said that there would not be an increase of criminal law convictions with this, and that the requirement for the conviction would not offer any protection to the victims. She declared that it was necessary to be cautious and to properly vet the claimed experts of family law, as opposed to those who have worked in the field and understand the dynamics of domestic abuse. She said that for courts to take on the issue of custody, it needed to be prepared to hear "some of the messy business that goes on behind closed doors that is the typical situation of domestic abuse." She stated her opposition to the proposed bill. 3:56:13 PM CHAIR SEATON relayed that the proposed CS had been revised to change the standard from conviction to clear and convincing evidence that there was a history of performing domestic violence. 3:56:56 PM CHRISTINE PATE, Legal Program Director, Alaska Network on Domestic Violence & Sexual Assault (ANDVSA), stated opposition to the proposed bill. She relayed that the legal program provided civil legal assistance, primarily in family law cases, to victims of domestic violence and sexual assault, as well as legal advice and counsel to advocates in the ANDVSA member programs. She shared her background in family law. She expressed her understanding of how the custody statutes affected victims, both before and since the enactment of the rebuttable presumption law. She expressed concern for the effect on children of this proposed legislation. She stated that the rebuttable presumption law was enacted to protect Alaskan children from the harmful effects of exposure to domestic violence. She expressed agreement with the sponsor statement that fathers were a critical part of a child's life; although, she declared, it was most important for a child to have two healthy parents. She stated that Alaska consistently ranked near the top nationally for domestic violence and sexual assault. She pointed out that the emotional, physical, and mental health of children in homes with domestic violence was detrimentally affected. She explained that the rebuttable presumption against awarding a parent custody was enacted to ensure that the court made consideration of domestic violence a top priority in the decisions for custody of children, as prior to this, domestic violence was only one of nine best interest factors that could be considered by the court in these custody decisions. She said that domestic violence was such an enormous issue in Alaska that it needed to be more than one of the nine best interest factors, declaring that the proposed bill would return Alaska to these considerations unless there had been a criminal conviction for domestic violence. She shared her concerns for the proposed committee substitute regarding a clear and convincing evidence standard. She offered her belief that domestic violence was very hard to prove in court, as victims often did not want to come forward because of fear or shame, and often there was not extraneous evidence. She stated that the clear and convincing standard made domestic violence even harder to prove in a custody case, and she expressed support for the removal of the criminal conviction standard. She opined that this standard was an enormous burden to overcome, especially in Rural Alaska. She stated that there was nothing in the legislative history of the rebuttable presumption law that indicated its purpose was to require a criminal history of domestic violence, as the current law required a history of perpetrating domestic violence to invoke the rebuttable presumption. She reported that rebuttable presumption was defined as one act which caused serious physical injury, a very high standard, or more than one act of domestic violence found by a preponderance of the evidence, 51 percent or more. She declared that the history of domestic violence was well defined in the statute. She stated that an accusation of domestic violence was not enough to invoke the presumption and lose custody of the children, as there had to be a finding by the trial court that it was more likely than not, the civil legal standard, that one incident of serious physical injury or two or more incidences occurred. She pointed out that this finding could not happen in an ex parte protection order hearing, but could only occur after a long term domestic violence hearing, or in a custody case where both parties had the opportunity to fully present evidence and testify about the incidences. She emphasized that courts are hesitant to make findings of domestic violence in long term protection order cases because of an understanding to the significance of the findings in a custody case. She declared that supervised visitation was free in most areas of Alaska. CHAIR SEATON pointed out that the proposed bill would next go to the House Judiciary Standing Committee. 4:04:00 PM CHAIR SEATON closed public testimony on HB 334 after pointing out that the above two testifiers had been cut off during the previous hearing on HB 334 due to technical difficulties. 4:04:32 PM REPRESENTATIVE TARR reflected that her struggle with the proposed bill was that the testimony had been in such contrast. She pointed out that the testimony regarding supervised visits had ranged from not being available, to very costly at $75 per hour, to being free in most communities. 4:05:58 PM REPRESENTATIVE TALERICO moved to adopt the proposed committee substitute (CS) for HB 334, Version 29-LS1409\N, Bruce, 4/5/16, as the working draft. There being no objection, Version N was before the committee. 4:06:38 PM MS. KOENEMAN stated that the proposed bill was a complicated issue, and that the sponsor was trying to find a more middle ground for the best interest of the children. She directed attention to the original intent language adopted by the legislature in 1981, which essentially stated that it was in the best interest for parents to share the rights and responsibilities of child bearing. While actual physical custody may not be practical or appropriate in all cases, it was the intent of the legislature that both parents had the opportunity to guide and nurture the child and to meet the needs of the children on an equal footing beyond the considerations of support or actual custody. She declared that the proposed bill was seeking to ensure that the needs of the child were met. CHAIR SEATON, in response to Representative Talerico, asked Ms. Koeneman to explain the changes made for the proposed committee substitute, Version N. 4:08:43 PM MS. KOENEMAN directed attention to Section 1, which removed the rebuttable presumption language in AS 25.24.150(g). She reported that Section 2 added language for clear and convincing evidence to establish a history of perpetrating domestic violence, as well as the language for the conviction of a crime, for the judge to use in determination of visitation rights. She moved on to Section 3 which removed the rebuttable presumption language. She explained the changes to Section 4 which dealt with the delegation of visitation rights to a family member by deployed parents. She relayed that Section 5 was the modification of a custody or visitation order that removed the rebuttable presumption. She pointed out that Section 6 removed the rebuttable presumption language for military families for the delegation of visitation rights to a family member. She reported that Section 7 referenced AS 25.24.150(c)(6), which removed the current language and changed it to "clear and convincing evidence." She reported that Section 8 contained all new language, which brought all the custody arrangements back to AS 25.20.061 if there was any clear and convincing evidence of domestic violence, and that language was set out in Section 2 of the proposed bill. She noted that the court could order these pieces referenced in Section 2. She pointed out that AS 25.24.150(m) added a time frame around the acts of domestic violence. She shared that AS 25.24.150(n) was in regard to both parents committing domestic violence, and the award of custody to the parent least likely to perpetrate domestic violence, or to a suitable third party as ordered by the court. She moved on to the changes for Section 9 which repealed the rebuttable presumption language as well as the language regarding both parents committing a domestic violence crime. She concluded with Section 10 which stated that this act only applied to visitation or custody orders issued on or after the effective date of the proposed bill. CHAIR SEATON directed attention to page 5, line 14, and asked if this language was applicable if this was a child of either one of the parents. MS. KOENEMAN replied that the intent was to include step- children or foster children. REPRESENTATIVE WOOL suggested that it could read "a child of either of the two parents." CHAIR SEATON opined that it would be a child within the family. 4:16:46 PM LINDA BRUCE, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, in response to Chair Seaton, said that the language currently exists under AS 25.20.061, and that it could be altered to apply to a child of either of the two parents. CHAIR SEATON asked if this would cover foster children in the home. MS. BRUCE offered her belief that the alteration would cover this, although she would review this further and provide a written response. 4:17:52 PM NANCY MEADE, General Counsel, Administrative Staff, Office of the Administrative Director, Alaska Court System, said that she would defer to the Legislative Legal and Research Services for the wording. She stated that definitions of domestic violence and household member already exist. 4:18:20 PM REPRESENTATIVE VAZQUEZ offered her belief that there was a definition of child in the adoption chapter, AS 25.23.240. She relayed that her problem was that it was very restrictive, and she pointed out that if the child was not biological, and had yet to be adopted, they would not be technically covered. She suggested the use of "household member" or similar. CHAIR SEATON asked if this could be resolved so to cover domestic violence within the household. MS. BRUCE said that she would. 4:19:20 PM REPRESENTATIVE TARR asked about a circumstance with two adults and a blended family of biological children from previous relationships, although the adults were not legally married. She asked about a time frame for legal custody or visitation rights by each parent. MS. MEADE replied that there were grandparent rights and that she would research the rights for a person with a long standing relationship with the child. 4:20:53 PM CHAIR SEATON suggested a letter outlining the questions be sent to the next committee of referral. REPRESENTATIVE TARR asked that the circumstances around non- married couples be addressed. CHAIR SEATON reiterated that a letter asking House Judiciary Standing Committee to address certain issues could be sent along with the proposed bill. He directed attention to page 4, lines 11 - 14, and asked for an explanation. MS. KOENEMAN expressed her agreement that the language should also conform to "clear and convincing evidence" or "has committed a crime" in order for there to be consistency in all the areas. MS. MEADE replied to an earlier question by Representative Tarr about supervised visitation, and its availability in different communities. She explained that she had also heard different things. She stated that it was most common for the judge to seek that the parties agree on a family friend or relative to supervise the visitation, and only if there was not agreement would there be the need for professional supervision. She opined that there was no longer such an entity in Juneau, although this did vary by community. REPRESENTATIVE TARR asked about participation in a batterer intervention program, offering her belief that the only programs available would be prison based, as the funding for community based programs was being eliminated. She opined that a judge could not order this intervention if there was not a program within fifty miles. She asked if this would impact the ability for these situations to be resolved favorably. MS. MEADE, in response to Representative Tarr, offered her belief that, in Section 9, the presumption was eliminated, hence there would not be any need for the batterers intervention program; however, directing attention to page 2, lines 8 - 12, she relayed that if there was a finding by clear and convincing evidence of domestic violence or a conviction of domestic violence, the court may order that the perpetrator go to one of these programs. She noted that if a program did not exist, she would not expect that the judge would order this. 4:28:39 PM CHAIR SEATON, noting that telehealth programs had better results as they had full attendance, asked if there was a batterers program offered electronically. MS. KOENEMAN relayed that there were batterer prevention programs available on-line, although they were new and not yet used in the state. 4:29:54 PM The committee took a brief at-ease. 4:31:21 PM CHAIR SEATON announced that HB 334 would be held over.