Legislature(2009 - 2010)CAPITOL 120
03/08/2010 01:30 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB238 | |
| HB334 | |
| HB71 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 238 | TELECONFERENCED | |
| + | HB 334 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 71 | TELECONFERENCED | |
HB 334 - MILITARY DEPLOYMENT AND CHILD CUSTODY
1:47:27 PM
CHAIR RAMRAS announced that the next order of business would be
HOUSE BILL NO. 334, "An Act establishing child custody,
modification, and visitation standards for a military parent who
is deployed; and amending Rule 99, Alaska Rules of Civil
Procedure." [Before the committee was CSHB 334(MLV).]
1:49:52 PM
KACI SCHROEDER HOTCH, Staff, Representative Bill Thomas, Alaska
State Legislature, on behalf of the sponsor, Representative
Thomas, noted that the country's recent, frequent military
deployments have put enormous strain on military families, and
that this strain has sometimes resulted in divorce and child
custody battles. House Bill 334 would provide the courts with
guidelines for balancing the issues of child custody and
military deployment. For example, the bill precludes the courts
from considering military deployment as a factor when awarding
child custody; provides for an expedited hearing so that child
custody matters could be addressed before the military member is
deployed; allows a military member to delegate visitation rights
to another family member - in this way, the child would be able
to maintain contact with that side of the family; provides for
temporary child custody orders if warranted - such orders would
expire within 10 of the deployed parent's returning [home] and
notifying [the other parent] that he/she was ready to resume
custody; and proposes to amend Rule 99(a) of the Alaska Rules of
Civil Procedure such that the courts shall allow video or
Internet testimony by a deployed parent during a child
custody/visitation hearing/deposition. However, the bill also
stipulates that none of the aforementioned may take place if it
wouldn't be in the best interest of the child.
1:52:53 PM
[The committee then listened to a recording of a news broadcast
regarding deployed military personnel involved in child custody
battles.]
1:56:13 PM
BRIGADIER GENERAL THOMAS H. KATKUS, Acting Adjutant
General/Commissioner, Department of Military & Veterans' Affairs
(DMVA), noted that during the last eight-and-half years that the
country has been at war, several pieces of legislation have been
passed to support the military as it holistically addresses the
three primary components of deployment: the family, the
employers, and the military members themselves. In order for
military personnel to remain fully engaged and focused on
winning the nation's battles, they must not be distracted and
shouldn't have to be worried about what's going on at home.
Unfortunately, custody issues arising from deployment constitute
a major distraction from the focus on staying alive during
battle and achieving the mission, and so HB 334 is critically
important, and other states have adopted similar legislation in
an effort to address this critical issue.
The committee took a brief at-ease.
REPRESENTATIVE GRUENBERG surmised that HB 334 could be viewed
one of two ways: it could be viewed as primarily an issue
involving the military member and his/her rights, or it could be
viewed more along the lines of how most courts would view it,
which is as a custody or visitation battle involving at least
one person who happens to be a military member. He predicted
that HB 334 would be used almost exclusively in custody battles
between warring parents, with the child as the prize.
BRIGADIER GENERAL KATKUS offered his belief that HB 334 is
intended to avoid that by keeping the issue on neutral ground
via not giving weight to the fact of deployment, which
constitutes an uncontrolled circumstance for the military
member, who shouldn't be placed at a disadvantage with regard to
custody issues simply for serving his/her country.
REPRESENTATIVE GRUENBERG referred to the language on page 1,
lines 6-8, that says in part, "a parent's temporary duty,
mobilization, or deployment to military service and the
resultant temporary disruption to the schedule of a child ...
may not be a factor in a court's decision". He questioned
whether this language is only addressing a very temporary
situation.
BRIGADIER GENERAL KATKUS said he assumes that that's correct.
2:02:15 PM
ALLEN M. BAILEY, Attorney at Law; Chair, Custody Committee,
Section of Family Law, American Bar Association, first mentioned
that he practices family law, and that he is also a former
member of the American Bar Association's Commission on Domestic
Violence, and a member of the Alaska Bar Association's Family
Law section's Executive Committee. He then offered his belief
that HB 334 would not only be good for military members, but, if
administered properly by [the Alaska Court System (ACS)], would
also be good for the children of military members; the bill
would not affect the bottom line of child custody issues, and
could be used to support the relationship between a service
member and his/her children.
MR. BAILEY characterized proposed AS 25.20.095(c) as a critical
provision because it stipulates that any delegation of
visitation rights must be in the child's best interest and that
the family member receiving the delegation must have an existing
close relationship with the child. Citing the Alaska Supreme
Court case, Evans v. McTaggart, he offered his understanding
that based on Alaska case law, a standard of clear and
convincing evidence would be used in such situations. He then
noted that although proposed AS 25.20.095(d) provides for an
expedited hearing, it contains a discrepancy because it also
allows for an additional 10-day notice - contrary to the concept
of the term, "expedited". Alaska law, specifically Rule 77 of
the Alaska Rules of Civil Procedure, already provides for what
he termed, "a much used" method by which to request an answer to
a legal question on an expedited basis; he indicated, therefore,
a belief that the bill's fiscal impact could be lessened by
simply relying on that existing method rather than by trying to
establish a new method via proposed subsection (d).
2:08:28 PM
PAGE HODSON, Alaska Moms for Custodial Justice, after explaining
that her group is concerned primarily about situations where
domestic violence, child abuse, and child custody issues
overlap, relayed that her group also advocates for the best
interests of the children. She said she likes the intent of
HB 334, as well as some of its provisions, such as that
pertaining to video and Internet participation in
custody/visitation hearings/depositions, but is concerned about
the focus on parents' rights over the rights of children. Her
first concern with HB 334, she relayed, is that it doesn't make
a distinction regarding the length of a deployment; for example,
for a deployment lasting seven years - seven years out of a
child's life - it would be hard to expect the courts to ignore
the fact that such a lengthy deployment is going to have an
impact on a child's life. She expressed her hope that some
cleanup language regarding the length of deployment could be
inserted into HB 334.
MS. HODSON explained that another concern she has with HB 334 is
that it doesn't seem to distinguish between custodial parents
and noncustodial parents, or take into account different types
of shared custody arrangements; for example, there could be a
reason why a parent is noncustodial and has only limited
visitation rights - such as having a substance abuse problem in
his/her past or being a perpetrator of domestic violence (DV).
Moreover, such reasons could make other provisions of the bill
problematic, such as the one pertaining to the delegation of
visitation. That provision, she opined, has the most problems,
particularly in light of the U.S. Supreme Court case, Troxel v.
Granville, in which the court ruled that it is unconstitutional
to delegate visitation to grandparents over the wishes of a
custodial parent. Furthermore, delegating visitation rights to
third parties could serve to destabilize children even more; for
example, if one parent is deployed, it may be better for the
children to stay in one primary home and not have their weekends
or school days disrupted in order to stay with a third party.
MS. HODSON offered her understanding that in addressing the
issue of third party visitation, the bill doesn't appear to
contain language stipulating that a hearing must take place,
although not requiring a hearing could prove detrimental to the
children, particularly given that in child custody proceedings,
domestic violence is often missed initially, and given that such
behavior is often passed down from generation to generation - a
perpetrator of DV often learns that behavior growing up in an
abusive home, in this case his/her child's grandparents' home.
This lack of a required hearing in the provision regarding
delegating visitation is of concern to her, as is the fact that
the provision appears to create a special class of litigants
wherein only deployed military litigants receive preference.
Such a preference could face a legal challenge.
MS. HODSON noted that proposed AS 25.20.095(f)(2) stipulates
that the court order entered into under the section must require
the nondeployed parent to facilitate electronic and telephonic
contact between the child and his/her deployed parent. She
characterized the intent of this provision as good, but
cautioned that perhaps the phrase, "must require" should be
changed to the phrase, "may require" in order to give the court
discretion in cases where the deployed parent has perpetrated
domestic violence, for example, or where there are other reasons
why such a requirement wouldn't be in the best interest of the
child. She then pointed out that the implied preferences
embedded in some of the current child custody statutes conflict
with current DV statutes, often resulting in the courts
minimizing how the domestic violence perpetrated in the home is
affecting the children.
MS. HODSON, in conclusion, said: "I'm concerned about ... so
much attention ... given, particularly, to the delegation of
visitation, because it does indicate that it's an implied
preference for that, as a standard, rather than something the
court may consider." In response to comments and questions, she
said she would prefer that the phrase, "may" or "may consider"
be used throughout the prevision pertaining to the delegation of
visitation instead of the phrase, "must" or "shall"; that she
believes the intent of the bill is very good; that her concerns
regarding the bill are not intended to dishonor military
members; and that whether the reason for a parent being overseas
makes a difference to a child depends on his/her age and
maturity.
2:16:40 PM
ANDREA WELLS, Family Readiness Support Assistant, 3rd Maneuver
Enhancement Brigade, U.S. Department of Defense (DOD), Fort
Richardson, Alaska; Court Appointed Special Advocate (CASA)
Volunteer, Alaska CASA Program, Office of Public Advocacy (OPA),
Department of Administration (DOA), after mentioning that she is
also a military spouse, offered her belief that HB 334 is really
needed - particularly given that soldiers are deploying
constantly and leaving their family members behind - and said
that she supports HB 334 on a personal level because she and her
husband, who is about to deploy, are currently addressing a
child custody issue. She said that she really appreciates [the
provisions mandating the court to order a delegation of
visitation rights], and that it's been disturbing to her that
when the courts or various other agencies [consider the issues
of child custody and military deployment], they only look at the
military member in terms of providing financial stability and
medical resources.
MS. WELLS opined that it's very important for military personnel
to be a part of their children's lives regardless that they've
been deployed. There are plenty of agencies and organizations
that consider the welfare of children, but none that address the
issues specific to the children of military personnel, and so
the effect on a military member when his/her child is removed
from the home must be considered, particularly given that in
certain situations, it's not always in the best interest of the
child to live with the other parent, who, depending on his/her
lifestyle, may not be able to maintain a familiar home life for
the child. A lot of issues must be considered when military
members deploy, and military members should not be penalized for
serving their country and protecting its citizens, she opined,
and expressed her hope that HB 334 would move forward as soon as
possible.
2:20:07 PM
MARK SAN SOUCI, Northwest Regional Liaison, State Liaison
Office, U.S. Department of Defense (DOD), mentioned that he is
operating under the direction of the Under Secretary of Defense
for Personnel and Readiness, and the Deputy Under Secretary for
Military Community & Family Policy. He relayed that the DOD
supports the language currently in HB 334, surmising that some
would say that it's better than similar laws in other states.
The issue addressed by the bill has become an important one for
the DOD, which believes that the welfare of the child is
paramount; that the demands of military service should not
abrogate the parent's rights; that this issue should be
addressed at the state level rather than at the federal level;
and that there are several protections states can enact that
would serve both the rights of the parents and the welfare of
the children.
MR. SAN SOUCI concluded by saying that with the substantially-
increased and continued activity of the country's armed forces
around the world, many states are recognizing the need [for
legislation such as HB 334], and noted that 32 states have
passed laws with some provisions similar to those in HB 334 and
that 11 states are considering similar legislation. In response
to questions, he reiterated that the DOD supports the bill as
currently written; noted that the bill is partially based on
model legislation; and opined that it's arguable whether any of
the provisions of HB 334 are unconstitutional.
2:25:17 PM
ADAM TOREM, Attorney at Law, after relaying that he is the
immediate past chair of the Washington State Bar Association's
(WSBA's) Legal Assistance to Military Personnel (LAMP) Section,
mentioned that HB 334 is based on Washington law that's been in
effect for about nine months.
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
MR. TOREM noted that he is also a U.S. Air Force reservist. He
then offered his belief that the ruling in Troxel would not
apply to the bill's provisions regarding the delegation of
visitation rights because that case did not involve a question
of custody between two parents, and offered his understanding of
how the courts in Washington address such situations under the
aforementioned Washington law, which is to grant the family
visitation that would otherwise have taken place except for the
fact that the parent was deployed.
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]
MR. TOREM offered his additional understanding that [under
HB 334,] the courts would be upholding the delegated visitation
rights as requested by an otherwise fit parent who's deploying.
This would ensure that such parents have less to worry about on
the battlefield.
2:30:04 PM
REPRESENTATIVE GRUENBERG predicted that because the bill's
proposed delegation of visitation rights would result in a third
party becoming involved in a case that would otherwise pertain
solely to a custody agreement between a child's two parents, the
courts in Alaska would apply the standard set out in McTaggart
of clear and convincing evidence - a standard based on the
Alaska Supreme Court's reading of Troxel.
MR. TOREM disagreed, citing the explicitness of Washington law
as sufficient to prevent the courts in the Alaska from applying
that standard, and surmising that any such issues that come
before the court would still be viewed as just a contest between
two parents who happen to be addressing the question of a
temporary delegation of visitation rights - rather than as a
contest between a parent and a third party addressing the
question of permanent visitation rights [such as was the case in
both Troxel and McTaggart]. He indicated that Washington law
supports the concept of mediation as the first resort, and that
no constitutional problems with that law have arisen.
REPRESENTATIVE GRUENBERG pointed out, however, that under Alaska
law, mediation is not mandatory, surmising that "if the ...
delegatee - the grandparents - wish to intervene, it would
probably, I believe, be reversible error to deny them the right
when they're the real parties in interest." He also noted that
Washington law says that the court "may" order a delegation of
visitation rights, whereas the bill says that the court "shall"
order a delegation of visitation rights.
MR. TOREM offered his understanding, though, that the courts in
Alaska would have the same amount of discretion under the bill
as Washington courts have under Washington law because the
language of proposed AS 25.20.095(c) says that delegation of
visitation rights shall be ordered only "if" the court finds
that the delegatee is a family member with an existing close
relationship to the child, and that the delegation would be in
the child's best interest. Any lawyer should be able to
successfully argue that the term, "may" has the same meaning as
the terms, "shall" and "if" when used together, he ventured.
REPRESENTATIVE GRUENBERG pointed out, however, that Washington
law also uses the term, "if" along with the term, "may". He
posited that the intent of the bill would be clearer if the bill
said, "may".
MR. TOREM acknowledged that Washington law uses the term, "may".
2:37:41 PM
ALLISON E. MENDEL, Attorney at Law, mentioned that she is a
member of the Alaska Bar Association's Family Law section, and
was present when the original version of HB 334 was presented to
the section and so heard other members' comments regarding it.
She indicated that she specializes in the field of domestic
relations, and that in the approximately 400 divorce cases she
has handled, she has represented both military members and
nonmilitary members, and expressed concern with the way the bill
is currently drafted and how it interacts with existing statute
and whether it's going to achieve what it's intended to, that
being, she surmised, to provide stability in the contact between
the deployed military member and his/her child and family, and a
solution to perceived problems with how the court system in
Alaska deals with the issues [of deployment and child custody].
CHAIR RAMRAS disagreed that those are the goals of the bill.
MS. MENDEL explained that the Family Law section of the Alaska
Bar Association feels strongly that there isn't any evidence of
a problem with the Alaska Court System (ACS) in terms of it
treating military families, especially deployed members,
respectfully; and that that has been her experience as well:
that the ACS - having so much contact with military families -
treats them very respectfully and is very careful about their
rights - whether they are military members or nonmilitary
members. She said she is not sure that there really is a
problem for the bill to respond to; moreover, the bill could
potentially create a problem when both parents addressing the
issue of child custody are military members. She indicated that
she, too, has concerns about the mandatory nature of some of the
bill's provisions, and its lack of clarity regarding under what
conditions visitation rights could be delegated, and that she
would prefer that the bill not make the already-difficult issue
of child custody worse in any respect.
MS. MENDEL - remarking on the bill's potential constitutional
problems in light of the courts' rulings in Troxel and McTaggart
- said she believes that there may be other ways of achieving
the bill's goals regarding the delegation of visitation, an
issue which, she opined, must be carefully considered. The
bill, she noted, doesn't actually address the issue of
delegating visitation rights to a military member's current
girlfriend/boyfriend, as some have indicated it would; instead,
HB 334's proposed AS 25.20.095(h)(2) defines the term, "family
member" as: "a person who is an adult sibling, aunt, uncle,
first cousin, or grandparent related by blood, adoption, or
marriage or a stepparent to the child who is the subject of a
custody order issued under this section;". In many instances,
she surmised, this could be present a problem for those whose
relationship can't be so defined.
MS. MENDEL relayed that the biggest problem with HB 334 is that
it is unclear with regard to how it would interact with Alaska's
existing child custody laws; for example, under proposed AS
25.20.110(e), even as an experienced practitioner of family law,
she is unable to determine when to tell the court that she wants
a hearing, how the court is going to implement that provision,
or even how the proposed procedure outlined in proposed AS
25.20.110(e) is intended to work. It's important that such
procedural problems be addressed before the bill moves forward,
so that it can be effective and easy to apply. The idea behind
HB 334, she opined, is a good one, but it's important for the
bill to be of a piece with existing Alaska statutes so that
everyone can apply it properly.
2:43:07 PM
REPRESENTATIVE GRUENBERG asked Ms. Mendel whether she believes
that the potential constitutional problem could be addressed by
adding the phrase, "by clear and convincing evidence" to the
language on page 2, line 2, such that proposed AS 25.20.095(c)
would then in part read: "if the court finds by clear and
convincing evidence that ...".
MS. MENDEL surmised that it would, and indicated that in lieu of
such a change, some type of a standard should be inserted in
order to address issues such as those raised in McTaggart. In
response to a question, she predicted that as currently written,
the bill would invite litigation because it has so many
potential trouble spots. Referring to the bill's stipulation
that a court cannot consider deployment as a factor, she said
she couldn't envision how the court could possibly make a
decision on behalf of a child without at least considering the
fact that the parent is being deployed. In fact, shouldn't the
court consider the fact of deployment in order to be able to
make adequate accommodations for the child to see the deployed
parent's other family members? She opined that the current
language of that stipulation doesn't mean what she believes is
intended, that being to ensure that the court doesn't punish the
deployed parent for being deployed.
CHAIR RAMRAS opined that the purpose of the bill is to require
the court to consider the deployment, rather than simply
allowing the court the discretion to consider the deployment if
it so chooses.
MS. MENDEL agreed, but pointed out that the language instead
says that deployment "may not be a factor in a court's
decision", and thus won't ensure that the court considers the
problems facing the deployed parent.
2:45:55 PM
REPRESENTATIVE GRUENBERG opined that the problems with the bill
could be cured, and relayed that he wants the bill to succeed
rather than be struck down by the courts. He referred to the
language of proposed AS 25.20.095(e), which requires a deployed
parent's waiver of his/her rights and protections with regard to
custody or visitation to be in writing. He asked Ms. Mendel
whether she would support amending that provision such that the
deployed parent would be required to expressly waive his/her
rights or protections "in writing or on the record". This
should address situations in which the waiver is "done in open
court," he remarked.
MS. MENDEL offered her belief that requiring the waivers to only
be in writing would be unduly restrictive.
REPRESENTATIVE GRUENBERG noted that the language of proposed AS
25.20.095(e) in part says, "A parent who is deployed may not be
construed to have waived any rights or protections", and
questioned whether that language should instead say, "A parent
who is deployed may not be presumed to have waived any rights or
protections".
MS. MENDEL said she doesn't know what the term, "construed" is
intended to mean. If the drafter meant to refer to a
presumption, then the term, "presumed" would be the preferred
term to use in the bill, because the term, "construed" doesn't
have an accepted legal meaning.
2:48:30 PM
MARK E. SULLIVAN, Attorney at Law, mentioned that in addition to
practicing family law for over 30 years, he is also a retired
U.S. Army Reserve Judge Advocate General [with the rank of]
Colonel, the author of "the military divorce handbook" published
by the American Bar Association, and "a fellow" of the American
Academy of Matrimonial Lawyers. He explained that during the
last three years, he has been working on military custody
statutes in 15 states, and has testified against similar
legislation before Congress because he believes that it's the
job of the states to address this issue rather than that of the
federal government. Noting that he wrote North Carolina's
statutes addressing military custody and visitation, he
characterized HB 334 as a [much] better bill because it goes
several steps beyond North Carolina's statutes.
MR. SULLIVAN offered his understanding that HB 334 won't allow
the absence of a parent due to deployment to be construed as a
waiver of rights to be with the child unless there is an express
waiver to that effect; would require the nondeployed parent to
make the child available to the deployed parent during periods
of leave from deployment; would require the nondeployed parent
to facilitate contact between the deployed parent and his/her
child; would mandate that the deployed parent provide timely
information about his/her leave schedule to the nondeployed
parent; and would require the nondeployed parent to provide the
deployed parent with immediate notification of any change of
address or contact information.
MR. SULLIVAN, in conclusion, offered his belief that HB 334
would make Alaska one of the leading states in protecting
children of military members and the military members
themselves, and that its passage would help ensure that this
issue is addressed at the state level rather than at the federal
level.
2:53:09 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1,
which read [original punctuation provided]:
Page 2, line 2, following "finds":
Insert "by clear and convincing evidence"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG, referring to a copy of the McTaggart
case, offered his belief that it's very clear that it involved a
visitation contest between a parent and a third party; that the
court required the third party to bear the burden of proving
that the best interests of the child would be promoted by
visitation with the third party; and that "this" was based on
the U.S. Supreme Court's ruling in Troxel. He said he does not
believe that the court would, in any manner, consider "this" to
be a contest between the two parents, because the person getting
the visitation would be a third party.
MR. SULLIVAN, in response to a question, expressed disfavor with
Amendment 1, and indicated that [the lack of the language it's
proposing to add] hasn't been seen as a problem by the courts in
North Carolina, Washington, Vermont, Indiana, Colorado, Alabama,
or Illinois; those courts have not viewed [the current language
of proposed AS 25.20.095(c)] as raising a Troxel issue.
MR. BAILEY said:
The issue is whether or not a court faced with this
kind of delegation, which impliedly says that the
left-behind parent is not fit to make appropriate
visitation decisions -- The [Alaska] Supreme Court
said, "we believe that a finding of parental unfitness
to make a visitation decision should be made using a
clear and convincing evidence standard in order to
reduce the possibility of an erroneous interference
with parental prerogatives." ... As a person who had
an excellent relationship with his grandparents when
... I was a child, I understand why this has been
proposed. I'm just concerned about our [Alaska]
Supreme Court's legal ruling.
A roll call vote was taken. Representatives Gruenberg and
Holmes voted in favor of Amendment 1. Representatives
Dahlstrom, Herron, Gatto, Lynn, and Ramras voted against it.
Therefore, Amendment 1 failed by a vote of 2-5.
2:58:16 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2,
which read [original punctuation provided]:
Page 2, line 11, following "writing":
Insert "or on the record"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG explained that sometimes waivers of
rights or protections with regard to custody or visitation are
made on the record in open court, rather than in writing.
MR. SULLIVAN, in response to a question, said he has no problem
with Amendment 2.
REPRESENTATIVE DAHLSTROM removed her objection.
CHAIR RAMRAS, indicating that there were no further objections,
announced that Amendment 2 was adopted.
2:59:21 PM
REPRESENTATIVE GRUENBERG made motion to adopt Amendment 3, which
read [original punctuation provided]:
Page 2, line 9:
Delete "construed"
Insert "presumed"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
MR. SULLIVAN, in response to a question, relayed that he doesn't
have a problem with Amendment 3.
REPRESENTATIVE DAHLSTROM removed her objection.
CHAIR RAMRAS announced that Amendment 3 was adopted.
3:00:26 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 4,
labeled 26-LS1310\S.7, Mischel, 3/8/10, which read:
Page 3, line 18, following "circumstances":
Insert "that materially affects the welfare of
the child if the court approves a military family care
plan and if the temporary duty, mobilization, or
deployment is for a period that is less than six
months"
Page 4, line 18, following "consider":
Insert "the terms of the parent's military family
care plan and"
CHAIR RAMRAS indicated that there was an objection to
Amendment 4. He expressed disfavor with establishing a time
limit on deployment.
MR. SULLIVAN, in response to a question, indicated agreement.
REPRESENTATIVE GRUENBERG [made a motion to amend] Amendment 4
such that the language it proposes to add to page 3, line 18,
would no longer contain the words: "and if the temporary duty,
mobilization, or deployment is for a period that is less than
six months".
CHAIR RAMRAS, after ascertaining that there were no objections
to the amendment to Amendment 4, stated that Amendment 4 was
amended.
MR. SULLIVAN, in response to a question, indicated that he
disapproves of Amendment 4, as amended.
REPRESENTATIVE GRUENBERG explained that a "military family care
plan" can be prepared by a military family, and, under Arizona
law, can be presented to the court; and that the purpose of
Amendment 4, as amended, is to state that if the court has
already approved the military family care plan, then the court
doesn't have to approve anything else - "it will take the place
of a second hearing." He predicted that Amendment 4, as
amended, would save [proposed AS 25.20.110(d)] from being unduly
burdensome.
MR. SULLIVAN, in response to a question, surmised that
Amendment 4, as amended, would allow the military family care
plan to be a substitute plan for the court.
REPRESENTATIVE GRUENBERG concurred.
A roll call vote was taken. Representatives Gruenberg and
Holmes voted in favor of Amendment 4, as amended.
Representatives Herron, Lynn, Dahlstrom, and Ramras voted
against it. Therefore, Amendment 4, as amended, failed by a
vote of 2-4.
3:05:11 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 5,
labeled 26-LS1310\S.6, Mischel, 3/8/10, which read:
Page 1, line 6, following "(a)":
Insert "In determining the availability of a
parent for custody or visitation, if a parent is
deployed or in a position where the parent may be
deployed, the court shall take particular care to
ensure that the child has the maximum opportunity,
consistent with the best interests of the child, to
have contact with the parent."
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG explained that Amendment 5 would
protect the child's right to have contact with the [deployed]
parent.
MR. SULLIVAN relayed that he had no objection to Amendment 5.
REPRESENTATIVE DAHLSTROM removed her objection.
REPRESENTATIVE GRUENBERG, in response to a question, explained
that the policy being set via Amendment 5 is that the courts
shall take steps to ensure that the deployed parent and his/her
child have maximum contact with each other. He offered his
understanding that that's the whole purpose of HB 334. In
response to further questions, he assured the committee that
adoption of Amendment 5 wouldn't have any effect on how the
military conducts its operations.
CHAIR RAMRAS announced that Amendment 5 was adopted.
3:07:43 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 6,
which read [original punctuation provided]:
Page 2, lines 6-8:
Delete all material
Reletter the following paragraphs accordingly.
Page 4, lines 15-16:
Delete all material
Reletter the following paragraphs accordingly.
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG explained that Amendment 6 would delete
the provisions regarding an expedited hearing because in Alaska,
under Rule 77 of the Alaska Rules of Civil Procedure, the courts
already provide for expedited hearings.
MR. SULLIVAN, in response to a question, indicated that he
doesn't think that adopting Amendment 6 would be a good idea.
MR. BAILEY concurred that provisions within Rule 77 already
provide for an expedited hearing for good cause. The only
requirement for the court to comply with, he remarked, is that
it give "the other side" at least 24 hours' notice before a
motion is acted upon, adding that Rule 77 requires the attorneys
involved to cooperate "in letting each other know if they're
going to do this."
REPRESENTATIVE GRUENBERG predicted that Rule 77 would allow for
a more expedited hearing than that outlined in the bill because
[part of] the language Amendment 6 is proposing to delete
provides for an additional 10 days' notice, which, he opined,
would be counterproductive.
3:11:28 PM
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), in response to a question, offered his understanding that
Rule 77 would provide for a hearing sooner.
REPRESENTATIVE GRUENBERG, in response to a question regarding
Amendment 6, offered his belief that the language that would be
deleted from page 4, lines 15-16, pertains specifically to the
military member, whereas the language that would be deleted from
page 2, lines 6-8, could be used by either party because it is
not, by its terms, limited. Either party, he remarked, could
make use of Rule 77.
A roll call vote was taken. Representatives Gruenberg and
Holmes voted in favor of Amendment 6. Representatives Lynn,
Dahlstrom, Herron, and Ramras voted against it. Therefore,
Amendment 6 failed by a vote of 2-4.
3:14:08 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 7,
labeled 26-LS1310\S.5, Mischel, 3/8/10, which [along with
typographical errors] read:
Page 3, line 13, following "cause":
Insert ";
"(4) "parent" includes a legal guardian of
the child"
Page 4, line 26:
Delete "and military service"
Insert ", military service, and "parent""
CHAIR RAMRAS stated that there was an objection.
REPRESENTATIVE GRUENBERG explained that [this additional
definition is necessary] because it is not uncommon for the
courts to establish a legal guardian for a child.
CHAIR RAMRAS, after ascertaining that the objection was removed,
announced that Amendment 7 was adopted.
3:15:38 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 8,
labeled 26-LS1310\S.3, Mischel, 3/8/10, which read:
Page 2, line 16:
Delete "the nondeployed"
Insert "each"
Page 2, line 17:
Delete "deployed parent's child and the deployed
parent"
Insert "other parent and the child"
Page 2, line 19:
Delete "and"
Page 2, line 21, following "schedule":
Insert "; and
(4) each parent provide immediate
notification of a change of address or contact
information as provided under AS 25.20.110(e)(5)"
Page 4, line 8:
Delete "the parent who is not deployed"
Insert "each parent"
Page 4, line 9:
Delete "deployed"
Insert "other"
Page 4, line 12:
Delete "who is not deployed"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG explained that Amendment 8 would
stipulate that each parent has the duty to facilitate
communication between the child and his/her other parent,
thereby providing for as much communication as possible between
the child and both of his/her parents.
MR. SULLIVAN, in response to a question, agreed with
Representative Gruenberg.
REPRESENTATIVE DAHLSTROM removed her objection.
CHAIR RAMRAS announced that Amendment 8 was adopted.
3:17:43 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 9,
which read [original punctuation provided]:
Page 1, line 8:
Delete "schedule"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG made a motion to amend Amendment 9 such
that the language that would be deleted from page 1, line 8,
would be, "schedule of a". There being no objection,
Amendment 9 was amended.
CHAIR RAMRAS noted that if Amendment 9, as amended, were to be
adopted, proposed AS 25.20.095(a) would then read:
(a) Except as provided in this section, a parent's
temporary duty, mobilization, or deployment to
military service and the resultant temporary
disruption to the child of the parent may not be a
factor in a court's decision to grant or deny a
petition for custody or visitation.
MR. SULLIVAN said he doesn't have any objections to Amendment 9,
as amended.
REPRESENTATIVE DAHLSTROM removed her objection.
CHAIR RAMRAS announced that Amendment 9, as amended, was
adopted.
3:19:22 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 10,
labeled 26-LS1310\S.1, Mischel, 3/8/10, which read:
Page 2, lines 22 - 25:
Delete "In making a determination of the best
interests of the child, the court shall consider the
factors under AS 25.24.150(c) and apply the rebuttable
presumption under AS 25.24.150(g) to visitation,
delegation, and custody orders issued under this
section."
Insert "In making a determination of the best
interests of the child, the court shall consider (1)
the factors under AS 25.24.150(c) and apply the
rebuttable presumption under AS 25.24.150(g) to
visitation, delegation, and custody orders issued
under this section, and (2) any history of violent
behavior exhibited by a parent."
Page 2, line 30, following "partner.":
Insert "The court shall make specific written
findings regarding the considerations required to be
considered in (1) and (2) of this subsection. In this
subsection, "history of violent behavior" does not
include any behavior or actions performed or
undertaken in connection with military duties."
REPRESENTATIVE DAHLSTROM objected.
MR. SULLIVAN, in response to a question, opined that the
adoption of Amendment 10 would be a good idea.
REPRESENTATIVE DAHLSTROM removed her objection.
CHAIR RAMRAS, indicating that there were no further objections,
announced that Amendment 10 was adopted.
3:22:08 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Conceptual
Amendment 11, such that on page 2, line 29, the word, "domestic"
would be deleted, and such that on page 2, lines 29-30, the
words, "against a spouse, a child, or a domestic living partner"
would be removed. He explained that he wants the courts to
consider whether the person has a history of any kind of
violence, not just domestic violence. There being no objection,
Conceptual Amendment 11 was adopted.
3:23:47 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 12,
which read [original punctuation provided]:
Page 4, line 2:
Delete "result in immediate danger of irreparable
harm"
Insert "be detrimental"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
MR. SULLIVAN, in response to a question, said he does not like
Amendment 12 because it's appears to be open ended. He
explained that when he drafted language for North Carolina's
statutes, the idea behind the language that Amendment 12 is
proposing to delete was that if a person is going to stop the
return of the child to the custodial parent, then the person
needs to be able to allege an emergency - otherwise there should
be a presumption that the child is going to go back to the
custodial parent, and the issue of whether that would be
detrimental could then be litigated afterwards.
CHAIR RAMRAS announced that Amendment 12 was withdrawn.
3:26:06 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 13,
which read [original punctuation provided]:
Page 1, lines 10-11:
Delete "(b) A parent who is deployed may petition
a court of competent jurisdiction for custody or
visitation. The"
Insert "(b) If a parent petitions a court of
competent jurisdiction for custody or visitation, the"
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
REPRESENTATIVE GRUENBERG opined that it's clear under current
law that a parent who's deployed, obviously, may petition the
court, and so the language in proposed AS 25.20.095(b) that
again references deployment is unnecessary; "all we have to say
is, if the parent petitions, then the petition shall be
construed ..., et cetera."
MR. SULLIVAN said that although it sounds like Amendment 13
would clarify the [provision], his intention in drafting the
language currently in proposed AS 25.20.095(b) was to specify
that there could be a separate [additional] petition for
affirmative relief in the context of custody and visitation
that's not the original petition for custody or visitation.
REPRESENTATIVE GRUENBERG opined that it's not necessary to state
that. "That's clear; you can do it by a motion or you can do it
by an original action - under the laws of Alaska, you can do it
either way," he concluded.
MR. SULLIVAN, acknowledged that point, and said he doesn't have
an objection.
A roll call vote was taken. Representatives Gruenberg and
Holmes voted in favor of Amendment 13. Representatives Lynn,
Dahlstrom, Herron, and Ramras voted against it. Therefore,
Amendment 13 failed by a vote of 2-4.
3:28:49 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 14,
which read [original punctuation provided]:
Page 2, line 1:
Delete "shall"
Insert "may"
REPRESENTATIVE DAHLSTROM objected.
A roll call vote was taken. Representatives Gruenberg and
Holmes voted in favor of Amendment 14. Representatives
Dahlstrom, Herron, Lynn, and Ramras voted against it.
Therefore, Amendment 14 failed by a vote of 2-4.
3:29:54 PM
REPRESENTATIVE DAHLSTROM moved to report CSHB 334(MLV), as
amended, out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection, CSHB
334(JUD) was reported from the House Judiciary Standing
Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 HB 334 Sponsor Statement.pdf |
HJUD 3/8/2010 1:30:00 PM |
HB 334 |
| 02 HB334 CS(MVA) v. S.pdf |
HJUD 3/8/2010 1:30:00 PM |
HB 334 |
| 03 HB334 Sectional.pdf |
HJUD 3/8/2010 1:30:00 PM |
HB 334 |
| 04 HB334-1-1-022410-CRT-N.pdf |
HJUD 3/8/2010 1:30:00 PM |
HB 334 |
| 05 HB334CS(MLV)-LAW-CIV-03-05-10.pdf |
HJUD 3/8/2010 1:30:00 PM |
HB 334 |
| 06 HB334 Support.pdf |
HJUD 3/8/2010 1:30:00 PM SFIN 4/9/2010 9:00:00 AM |
HB 334 |
| 07 HB334 Bill v. R.pdf |
HJUD 3/8/2010 1:30:00 PM |
HB 334 |
| 01 HB238 Sponsor Statement.pdf |
HJUD 3/8/2010 1:30:00 PM |
HB 238 |
| 02 HB238 ver R.pdf |
HJUD 3/8/2010 1:30:00 PM |
HB 238 |
| 03 HB238 Fiscal Note-CED-COM-2-11-10.pdf |
HJUD 3/8/2010 1:30:00 PM |
HB 238 |
| 04 HB238 HUD Letter 7-18-07.pdf |
HJUD 3/8/2010 1:30:00 PM |
HB 238 |
| 05 HB238 AHFC Comments.pdf |
HJUD 3/8/2010 1:30:00 PM |
HB 238 |