Legislature(2005 - 2006)CAPITOL 120
02/24/2006 02:00 PM JUDICIARY
Download Mp3. <- Right click and save file as
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 414 - INTERCEPTION OF MINOR'S COMMUNICATIONS 2:49:51 PM CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 414, "An Act relating to allowing a parent or guardian of a minor to intercept the private communications of the minor and to consent to an order authorizing law enforcement to intercept the private communications of the minor." [Before the committee was CSHB 414(HES).] MICHAEL O'HARE, Staff to Representative Pete Kott, Alaska State Legislature, sponsor, said on behalf of Representative Kott that HB 414 is intended to protect children from insalubrious characters and predation. Currently, if a child is communicating with someone, it is illegal for a parent to intercept that communication and take that person to court. In order to address this problem, HB 414 makes it legal for parents of a minor child to intercept communications, and allows parents, if acting in good faith and in the best interest of the child, to give law enforcement officials the authority to intercept the child's communications via court order. He relayed that while the sponsor recognizes that the bill might raise issues regarding the right of privacy, the sponsor feels that the state's compelling interest in the welfare of children outweighs the right of privacy. MR. O'HARE explained that Section 1 allows the parents or guardians of a minor to petition the court for an ex parte order authorizing law enforcement to conduct a wire tap if the parents or guardians are acting in good faith and with an objectively reasonable belief that doing so is necessary for the welfare of the minor. [Section 3] allows the parents or guardians of a minor to intercept a communication between a minor and a third party unless [that third party is] the minor's attorney or guardian ad litem. [Section 4] defines a minor as a child under the age of 18 who is not emancipated. He mentioned that there is a proposed amendment in members' packets that will add a definition of "parent" to Section 4; that proposed amendment read [original punctuation provided]: Page 4, after line 5, add: (12) "parent" means a natural person who is not prohibited by court order from communicating with the minor and is the minor's natural or adoptive parent of the minor's legally appointed guardian; "parent" does not include a person whose parental rights toward the minor have been terminated by court order. [Following was a brief discussion regarding what version of the bill was before the committee.] 2:53:28 PM MR. O'HARE relayed that while the sponsor recognizes the impact HB 414 may have on divorce proceedings and child custody proceedings, the sponsor feels that taking good care of children and monitoring their activities takes precedence, particularly given that parents are held responsible for the actions of their children. REPRESENTATIVE GARA asked what will happen in situations where one parent wants to listen in on conversations the child is having with the other parent in order to use that information in a custody battle. MR. O'HARE referred to [proposed AS 42.20.320(a)(9), which begins on page 3, line 30], and suggested that adding the words, "if it is in good faith and based on the objectively reasonable belief that it is necessary for the welfare of the minor", would address such situations should they arise. 2:56:23 PM REPRESENTATIVE COGHILL pondered whether the aforementioned proposed amendment should also reference "custodial parent", suggesting that such a change might address estranged family situations. REPRESENTATIVE GRUENBERG opined that HB 414 will open up a significant problem in custody cases and divorce cases wherein one parent wants to tape record [the child's] conversations with the other parent, and offered his understanding that a number of federal court of appeals' decisions have addressed the issue of whether the federal wiretapping Act permits such recordings, with the majority of federal courts permitting it as a domestic relations exception. He pointed out that he has been successful in getting a transcript of such a recording by arguing that regardless of whether the recording was illegal, it was permissible [as evidence] in that particular proceeding. Some states are trying to get around the federal issue by raising the question of whether such recordings should be legal under state law. He predicted that in the majority of situations, HB 414 will be used by warring parents to tape record a child's conversations with the other parent, and so he is concerned because any good divorce lawyer will simply advise his/her client to tape record every single communication the child has with the other parent. REPRESENTATIVE GRUENBERG opined that HB 414 will take on a different dimension in family law cases, and expressed his belief that a child should be able to freely talk privately with his/her parents and siblings unless there is a really good reason for not allowing it. He predicted that at some point lawyers will begin advising a child who is the subject of a custody battle to not say anything that he/she doesn't want used in court; this will become part of the legal strategy and the child will be put right in the middle of the battle. Currently the courts generally try to keep the child out of the middle of custody battles; for example, the courts don't ask children to testify or speak to them in chamber. Though in one case, he recounted, the child said she wanted to live with her father, and when the judge spoke to the child in chamber the judge found out that the reason the child wanted to live with her father was because he had promised her a pony. REPRESENTATIVE GRUENBERG suggested that the sponsor and his staff, as well as the committee, get input from family law practitioners, the [American] Bar Association's (ABA's) Family Law section, and the American Academy of Matrimonial Lawyers (AAML) regarding HB 414. "This is not primarily a criminal issue," he stated, reiterating that [the bill] will be used by warring parents. He indicated that his main concern centers on [Section 3] though he'd also like to ensure that [Section 1] will not be misused either. 3:03:04 PM MR. O'HARE reiterated that the sponsor's intent is to protect children, and so although there is the possibility that what Representative Gruenberg predicts will occur, the sponsor still feels that it will be in the best interest of Alaska's children to adopt this legislation. Mr. O'Hare indicated that the sponsor would be amenable to inserting language in [proposed AS 42.20.320(a)(9)] specifying that the parents must be acting in good faith. CHAIR McGUIRE asked what prompted the introduction of HB 414. MR. O'HARE said it was a child custody situation in which one parent discovered that the child was being emotionally abused by the other parent and also discovered that recording the child's conversations with that other parent was illegal. For the sponsor, this prompted the question of what happens in situations involving a child who is having conversations with a third party who might be seeking to harm the child or coerce the child into doing something against the law. CHAIR McGUIRE indicated that [CSHB 414(HES)] would be held over in order for the sponsor and his staff to further research the issues raised and perhaps find solutions to members' concerns.