Legislature(1995 - 1996)

04/22/1995 11:12 AM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 Number 400                                                                    
                                                                               
 SSSB 27 - MISC. GRANDPARENT VISITATION RIGHTS                               
                                                                               
 JAMES ARMSTRONG, Senate Researcher to Senator Dave Donley, bill               
 sponsor, gave the sponsor statement for SSSB 27.  SSSB 27 would               
 give grandparents the legal status to petition the court for                  
 visitation rights with their grandchildren.  Under existing law,              
 the court can grant an order that provides for visitation by                  
 grandparents in divorce and separation proceedings in cases where             
 one or both of the parents have died.  Grandparents themselves are            
 not allowed to initiate such an action.  SSSB 27 would give                   
 grandparents this standing to ask for those visitation rights if              
 they were not initially provided for by the court.  SSSB 27 does              
 not require that visitation rights be given.  It is completely up             
 to the discretion of the judge, with the best interests of the                
 child being the primary factor for granting such rights.                      
                                                                               
 REPRESENTATIVE CYNTHIA TOOHEY said she had been contacted by Lauree           
 Hugonin from Alaska Network on Domestic Violence and Sexual                   
 Assault, and her concern was that the judge is not going to be                
 filled in on all information pertaining to violence committed by              
 the parents.  The judge would possibly be granting these visitation           
 rights without having the knowledge.  That was a concern raised,              
 but Representative Toohey did not believe that to be true.  She               
 believed that in determining the best interests of the child, the             
 court should consider all relevant factors.  She felt the bill was            
 fine.                                                                         
                                                                               
 MR. ARMSTRONG said that the terms for the best interests of the               
 child is laid out in AS 25.24.150, Section (c)(9), which also lists           
 other factors that the court finds pertinent.  The judge does not             
 have to grant the privilege.                                                  
                                                                               
 SHERRIE GOLL, read the position paper written by Lauree Hugonin,              
 Executive Director of Alaska Network on Domestic Violence and                 
 Sexual Assault, into the record:                                              
                                                                               
 "The Network supports the ability of grandparents or other                    
 relatives to keep healthy, established, ongoing relationships with            
 children.  We support the goal of allowing grandparents and others            
 to petition for visitation.  We do have a concern for children's              
 safety when the perpetrator of domestic violence has access to the            
 child during grandparent visitation.  Often in domestic violence              
 situations, the parents of the perpetrator, the grandparents, and             
 other family members provide opportunities for him to see the                 
 children while the children are with them.  This happens in many              
 cases even when the judge has ruled that the perpetrator is not to            
 have custody of or visitation with the children.  Sometimes this              
 access allows the perpetrator to get the children, take them away             
 from their grandparents, and use them against the victim.                     
                                                                               
 "The grandparents can also be at risk if the perpetrator perceives            
 them as colluding with the victim or with the court system.  Many             
 people, judges included, perceive domestic violence as a private              
 matter between the perpetrator and the victim.  Domestic violence             
 impacts the children and the extended family members as well, and             
 can put them all in danger.                                                   
                                                                               
 "The Network's concern applies to the first section of the bill               
 where it says the court shall provide for visitation if it is in              
 the best interests of the child.  In determining the best interests           
 of the child for custody, the court uses a list of criteria found             
 in AS 25.24.150(c).  Item 7 states that in determining the best               
 interests of the child, the court shall consider any evidence of              
 domestic violence, child abuse, or child neglect in the proposed              
 custodial household, or history of violence between the parents.              
 "The Network believes in determining the best interests of the                
 child for visitation, the court should give heightened judicial               
 scrutiny to AS 25.24.150 (c)(7).  Heightened scrutiny of this                 
 particular item will add a layer of protection for children and               
 cause judges to carefully explore the potential for further danger            
 to the child."                                                                
                                                                               
 MS. GOLL explained that the Network is concerned that this bill is            
 saying that the court SHALL, unless they can find that to do so               
 would not be in the best interests of the child.  She is suggesting           
 that in cases where in the original custody decision, the court has           
 had to refer to AS 25.24.150(c)(7), because domestic violence or              
 child abuse was an issue in the original custody decision.  Then              
 when grandparents or other persons are petitioning for visitation,            
 the court needs to add heightened scrutiny to the case, based on              
 the actual problems that people have while other people have had              
 visitation with the children and allow the person who is not                  
 permitted to have visitation with the children to have access to              
 the children in that way.                                                     
                                                                               
 REPRESENTATIVE TOOHEY asked if this had been discussed with Senator           
 Donley.                                                                       
                                                                               
 MS. GOLL answered that yes, as James inferred, Lauree did have an             
 opportunity to speak to James and to the senator, and the senator             
 did not agree with the logic of this, but she still wished the                
 committee to understand her concerns.                                         
                                                                               
 REPRESENTATIVE TOOHEY Ms. Goll if she did not believe the words "in           
 the best interests of the child" would be sufficient.                         
                                                                               
 MS. GOLL answered that no, she did not.  When changes were made to            
 divorce and dissolution laws several years ago, one of the things             
 that was introduced into dissolutions was the concept of heightened           
 scrutiny.  Custody and divorce cases take up a lot of court time.             
 The court could place some parameters on the visitation rights in             
 order to protect the child better in situations where domestic                
 violence or child abuse has been an issue in the original custody             
 decision.                                                                     
                                                                               
 CHAIRMAN PORTER asked Ms. Goll if what she was saying is that on              
 page 1, she would suggest that they add something to the effect,              
 "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) with heightened scrutiny of (c)(7)."                          
                                                                               
 MS. GOLL answered that was the basic concept.  She would have it              
 say, "If in the custody decision, Item (c)(7) was an issue, then              
 the court would give heightened scrutiny to this determination                
 about the other person's visitation."                                         
                                                                               
 Number 550                                                                    
                                                                               
 CHAIRMAN PORTER said they could consider that when looking at                 
 amendments.                                                                   
                                                                               
 MARLIS SCHMID, testified via teleconference.  She is the                      
 grandmother of two children, ages eight and ten.  The children want           
 to see her but are not allowed since the stepfather is in the life            
 of her daughter.  The stepfather adopted the children a year after            
 her daughter married him, and that she can prove was fraud.  The              
 children's father has always been in contact with the children on             
 her telephone.  She had raised these children and had them 70                 
 percent of the time, because her daughter was working.  The                   
 children's father called her number, since the telephone was hung             
 up on him if her daughter was home, by her (at that time)                     
 boyfriend.  Her daughter went to court, claiming that the father              
 had no contact with the children.  She asked her daughter at that             
 time, "Tanya, how can you say that?  You know this is not true."              
 She said she did not want to hear about it.  The father had always            
 been in contact with the children, but her daughter did not want to           
 hear about it.  That is how the stepfather was allowed to adopt the           
 children.  She could not locate the father at the time before the             
 adoption was final.  She is being punished now.  It has been two              
 years in June since she has been allowed to see her grandchildren.            
 The father always stayed in touch with his children.  He wanted to            
 see them.  She kept her mouth shut.  He came up from Oregon and she           
 took the children to Soldotna to spend a week with their father,              
 and she was there too.  When she brought the children home,                   
 (indisc.) her own daughter came to her house and beat the heck out            
 of her.  Ever since then, she is being punished not to see the                
 children.  She has had the children overnight once.  She is not               
 even allowed to have phone contact.  She feels that the children              
 are being verbally abused by their stepfather.  They hear her voice           
 on the record-a-phone, but are not allowed to pick up the phone and           
 talk to her.  He laughs at them instead, and says, "Ha Ha, what are           
 you going to do about it?"  This kind of abuse is constant.  She              
 told them to tell her mother, and they say they do, but she tells             
 them she does not want to hear about it.  Her court order has been            
 temporarily denied, and she cannot see her grandchildren.  Her                
 contact with them is limited to the telephone.  She does not know             
 what to do anymore, and hopes the Legislature can help her.  Her              
 grandchildren need to see her, she raised them and they know they             
 are her number one.                                                           
                                                                               
 Number 665                                                                    
                                                                               
 CHAIRMAN PORTER thought if this bill were passed into law, she                
 would have the opportunity, not a guarantee, to visit her                     
 grandchildren.  If they are now out of state, that would probably             
 further complicate it, but, this bill certainly would not hurt.               
 He then asked Mr. Armstrong about Section 1, which seems to set up            
 a standard of "in the best interests".  Section 2 adds that the               
 grandparent has established or attempted to established ongoing               
 personal contact, and "in the best interests."                                
                                                                               
 MR. ARMSTRONG stated that currently the judge has the authority to            
 put a qualifier on it, in Section 9, where it says, "This parent              
 has committed domestic violence or assault."  The judge can look at           
 other pertinent information, other factors.                                   
                                                                               
 REPRESENTATIVE CON BUNDE assumed a judge would be wise enough to              
 look at the whole record before determining what is in the best               
 interests of the child.                                                       
                                                                               
 CHAIRMAN PORTER asked about Section (b) on page 2, which adds to              
 the proceedings that a grandparent may petition to join the                   
 adoption.  Are you assuming the standards are going to be the same            
 for the judge's determination during that proceeding as they were             
 in the divorce proceedings?                                                   
                                                                               
 MR. ARMSTRONG answered that it sort of gives a general provision in           
 other states and judging by the way section (2) was explained to              
 him, Chairman Porter's assumption would be correct.  Section 3 adds           
 dissolutions.                                                                 
                                                                               
 CHAIRMAN PORTER said he would like to ask the Senator about the               
 adoption hearing, which is a new addition, but the Senator had to             
 step out.  He asked Mr. Armstrong if the established standards for            
 a judge's decision in grandparent rights for divorces and custody             
 hearings attach to adoption procedures?                                       
                                                                               
 MR. ARMSTRONG answered that it seems to read that way, but he could           
 not say for sure.                                                             
                                                                               
 Number 740                                                                    
                                                                               
 CHAIRMAN PORTER said that Subsection (b) is the one that adds the             
 ability to intercede in an adoption procedure, and his concern is             
 that unless we specifically mention it, that the standards to be              
 used by the court to establish the best interests of the child, are           
 not necessarily there.                                                        
                                                                               
 REPRESENTATIVE FINKELSTEIN understood Subsection (b) as just a                
 limitation, not adding anything additional, but just to say that              
 you cannot go and petition if you have already tried to request the           
 court to do it previously, you cannot go and do it again, unless              
 there has been a change in circumstances.                                     
                                                                               
 CHAIRMAN PORTER clarified that Section 1 deals only with custody              
 determinations.  Is an adoption a custody determination?                      
                                                                               
 REPRESENTATIVE CON BUNDE said indeed it talks about relating to               
 child custody and relating to adoption.  That lead him to believe             
 that they are two separate things.                                            
                                                                               
 MR. ARMSTRONG said that in AS 25.24.150, is your concern as to                
 whether there is a "best interests of the child" clause?                      
                                                                               
 CHAIRMAN PORTER answered yes.                                                 
                                                                               
 MR. ARMSTRONG assured him that AS 24.25.150 contains the whole list           
 of what the judge should look at in determining the "best interests           
 of the child."                                                                
                                                                               
 CHAIRMAN PORTER'S concern was that those were separated by an "or."           
 That is the problem.  He stated the committee would set this aside,           
 and ask the Senator about that, and then come back to SSSB 27                 
 before the meeting ends.                                                      
                                                                               
 MR. ARMSTRONG agreed to do that.                                              
                                                                               
 CHAIRMAN PORTER noted that the language in Section 1 allows a                 
 grandparent or other person to intercede.  He wondered what was               
 implied by the other person, but this "other person" language does            
 not follow into the other section.  Is that intentional?                      
                                                                               
 MR. ARMSTRONG asked if he was referring to Section 2.                         
                                                                               
 CHAIRMAN PORTER answered yes.  Getting back to the concern about              
 domestic violence situations, he did not feel it would be offensive           
 to the bill to add that language.                                             
                                                                               
 REPRESENTATIVE CYNTHIA TOOHEY did not think so either.                        
                                                                               
 CHAIRMAN PORTER suggested on line 9, after AS 25.24.150 (c) that an           
 amendment could be made to eliminate the period and add "with                 
 heightened scrutiny of (c)(7) if appropriate."                                
                                                                               
 MR. ARMSTRONG noted that he did have an amendment that addresses              
 those concerns.                                                               
                                                                               
 CHAIRMAN PORTER asked Mr. Armstrong to first go get the answers to            
 those two questions, and then the committee could deal with the               
 amendment when Mr. Armstrong returned.                                        
 Number 650                                                                    
                                                                               
 SSSB 27 - MISC. GRANDPARENT VISITATION RIGHTS (CONTINUED)                   
                                                                               
 CHAIRMAN PORTER held the bill for subcommittee referral.  He then             
 announced that they would continue the hearing on SSSB 27.                    
                                                                               
 SENATOR DAVE DONLEY, bill sponsor, came forward to address the                
 committee's concerns.  He understood there was a concern as to why            
 the bill mentions other persons in the text, but not in the                   
 following section.  The simple answer to that is because all                  
 through the statutes, other persons, as well as grandparents, can,            
 not petition, but at the court's alone choice be granted visitation           
 rights.  But this bill does not give other persons the right to               
 petition, it only gives grandparents the right to petition.  While            
 we only give grandparents the right to petition, every where we               
 talk about what the court decides to do, we have to include other             
 persons because the court already has the authority to give that to           
 other persons, as well as grandparents.                                       
                                                                               
 CHAIRMAN PORTER said the next question dealt with page 2, lines 6             
 and 7, where it seemed to be bringing in the ability to petition to           
 be included in the hearing of an adoption for the first time, on              
 page 2, line 7.  The standards in the previous section, "the                  
 grandparent has established or attempted to establish ongoing                 
 contact."  He asked Senator Donley if it was his interpretation               
 that these standards would apply to this adoption.                            
                                                                               
 SENATOR DONLEY answered that it would only be "in the best                    
 interests of the child."  That is the standard the judge should               
 always use in order to grant the petition.  We do not change that             
 standard anywhere, that is real consistent in existing law.  All              
 this bill does is allow the grandparents the standing to ask for              
 that for the first time.  This is the same thing we have in every             
 other state in the United States, it is just standing to ask.  This           
 bill does not affect the standard that the judge uses to determine            
 whether he is going to grant that request from them.                          
                                                                               
 CHAIRMAN PORTER said his only concern is that it does not                     
 specifically say that is the standard when it deals with the                  
 adoption as it is stated in (b).  'After decree or final order                
 relating to child custody is entered under those two statutes,"               
 then "OR relating to an adoption under AS 25.23, a grandparent may            
 petition, only if," and then these are two other considerations.              
 He understood that we want the ability to exclude that in an                  
 adoption if they have already petitioned and been denied at the               
 original custody hearing.                                                     
                                                                               
 SENATOR DONLEY stated his staff had pointed out that in the                   
 adoption statutes, AS 25.23.125, it has a description of the                  
 interests of the minor to be adopted, and subsection (c) says the             
 court may issue a protective order or other order that is in the              
 best interests of the minor who is to be adopted.  So clearly, the            
 court could, if it was in the best interests of the minor, decline            
 to allow visitation, or in fact issue an order to prevent                     
 visitation.  He said his staff had prepared an amendment in case              
 additional language was requested.  His personal opinion was that             
 it was just not needed.  It is really doing something that is not             
 addressed by this bill.  It is really adding something that is very           
 much a stand alone concern, because clearly, all that amendment               
 does is create a new heightened scrutiny for the issue of potential           
 dangers to the children from relatives, and that is clearly already           
 provided for in the things the judge is supposed to look at in                
 determining visitation, and would be or not be relevant with or               
 without this bill because there are a lot of other people other               
 than grandparents, and once again this does not change anything as            
 far as the judge giving these visitation rights, or the standard              
 the judge uses, it only says that grandparents may ask.  He did not           
 believe the amendment to be necessary, but if the committee feels             
 this is something they really want to do, we went ahead and had the           
 language prepared just to expedite the process.                               
                                                                               
 REPRESENTATIVE TOOHEY stated it was very clear to her that it is              
 attributed to the grandparents' son or daughter, so you are                   
 flagging the possibility that the parents of a child who are                  
 accused of child abuse are going to come to the grandparents' house           
 and abuse the child.  It is not going to do anything except make it           
 one step closer to safety for the child, and she would hate to be             
 on the hot seat, saying that we did not do this, and this child was           
 abused.  She felt the amendment language would be the best way to             
 go.  She made a motion to adopt Amendment Number 1, which is as               
 follows:                                                                      
                                                                               
 Page 2, after line 13:                                                        
 Insert a new subsection to read:                                              
                                                                               
 "(c)  When determining whether to grant rights of visitation                  
 between a grandparent and grandchild under this section, AS                   
 25.20.060, or AS 25.24, and when determining the terms and                    
 conditions to be attached to a right of grandparent visitation, the           
 court shall consider whether there is a history of child abuse or             
 domestic violence attributable to the grandparent's son or daughter           
 who is a parent of the grandchild."                                           
                                                                               
 Hearing no objection, the amendment was adopted.                              
                                                                               
 Number 730                                                                    
                                                                               
 REPRESENTATIVE TOOHEY made a motion to move HCS SSSB 27(JUD) out of           
 committee with Amendment Number 1, individual recommendations and             
 zero fiscal notes as attached.  Hearing no objection, it was so               
 ordered.                                                                      

Document Name Date/Time Subjects