Legislature(2003 - 2004)
04/16/2004 01:38 PM Senate HES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 25-HEALTH CARE SERVICES DIRECTIVES
The committee took up CSHB 25(JUD).
CHAIR DYSON asked Jason Hooley, HES committee aide, to
distribute copies of the latest proposed committee substitute
(CS) for the bill. He told members several outstanding issues
remain, such as considering a second medical opinion regarding
decisions about withdrawing/withholding life support systems.
Modifying that provision was being considered because when
dealing with somebody who is comatose, second opinions are
available in hospital settings; however, second opinions may not
be available in the field. Also, a second issue, stopping CPR
after going through the widely understood protocols may also
come up. He noted that Senator Guess and Senator Davis might
have a proposed amendment dealing with pregnancy. In addition,
some language about severability will probably be inserted, in
case any portion of the bill is challenged and declared as
unconstitutional. "I'm told by the bill's sponsor that this is
already in Alaska law and doesn't need to be reiterated, but it
does no harm to reiterate it in the bill," he said.
SENATOR DAVIS moved [to adopt] the Senate committee substitute
(CS) for CSHB 25 (HES), version C [labeled 23-LS0137\C,
Bannister, 4/16/04] as the working document before the
committee.
CHAIR DYSON asked if there was any objection. There being none,
it was so ordered.
CHAIR DYSON asked if anybody wanted to testify today who would
not be able to testify at the next HES meeting scheduled for
Monday [4/19]. Seeing and hearing no response, Chair Dyson
announced that CSHB 25(JUD) would be held in committee until
Monday.
#
^#HB385
HB 385-AWARDING CHILD CUSTODY
The committee took up CSHB 385(JUD).
MR. HEATH HILYARD, staff to Representative Lesil McGuire,
presented CSHB 385(JUD) on behalf of the sponsor. He said the
bill went through several iterations before today, and in
looking at version W, he reflected that during the interim,
concerns were raised on behalf of the Alaska Court System.
During deliberations in the House Judiciary Committee, work was
done with Doug Wooliver from the Alaska Court System and
Representative Gruenberg, who had similar concerns, to present a
clean bill, today. HB 385 establishes a rebuttable presumption
that must be overcome by a preponderance of evidence in a
situation where there is a custody debate and there has been
prior domestic violence in the relationship. The general
concern is that it's nearly as harmful to children's development
and growth to witness domestic violence as it is for them to
experience the violence.
MR. HILYARD referred to page 4, lines 4 to 14, (h) as the
essence of the rebuttable presumption. It can be overcome, but
to do so, the perpetrating parent has to successfully complete
an intervention program for batterers, where reasonably
available. He noted "where reasonably available" was inserted
at the request of the Alaska Court System. He read, "that the
parent does not engage in substance abuse, and the best
interests of the child require that parent's participation as a
custodial parent because the other parent is absent, suffers
from a diagnosed mental illness that affects parenting
abilities, or engages in substance abuse..." Mr. Hilyard said
this is a child protection measure and the intent is to look
towards the child's best welfare. There may be instances where
an abusive parent may ultimately be a better choice, at least
for temporary custody, he added.
CHAIR DYSON said he assumes there has been a conviction of
domestic violence, not just an accusation.
MR. HILYARD replied correct. He said there have been concerns
regarding domestic violence claims being made at any time, and
abusively using those claims in a custody battle. Clarifying
that a parent has a history of perpetuating domestic violence
under (g) of this section would address those concerns; we're
looking for frequency, severity, and recency. There has to be
an established history or pattern recognizable by the court, he
added.
CHAIR DYSON noted Mr. Hilyard did not use the word, "conviction"
in his response.
MR. HILYARD said perhaps Mr. Bailey could address that question.
MR. ALAN BAILEY, an Anchorage attorney, testified via
teleconference and informed members that HB 385 does not require
a conviction for domestic violence. In normal child custody
actions, the burden of proof is by the preponderance of
evidence. A criminal conviction would require proof beyond a
reasonable doubt. That would benefit the batterer to the
detriment of family members.
CHAIR DYSON asked if Mr. Bailey was comfortable with HB 385
indicating that the mere accusation, or repeated accusations,
wouldn't be enough to prejudice the situation.
MR. BAILEY said otherwise it would be necessary for the court to
find by a preponderance of evidence that incidents of domestic
violence occurred. That would be after a contested hearing
whereby the victim's evidence and the alleged batterer's
evidence would be heard in court by the judge.
CHAIR DYSON acknowledged that both he and Mr. Bailey have seen
cases where both the accusation and the restraining orders were
issued. Until the subject of the restraining order could get
into court and make a case, there was a restraining order in
place. He said, "And may I infer that the judge would not
automatically take the fact that a restraining order had been
issued by some other judge as 'prima facie' evidence that
domestic violence had occurred."
MR. BAILEY confirmed this was correct. Those emergency orders
are called "ex parte orders" and don't involve the other party
being served and having a chance to present evidence. Those
types of orders would only be useful in a custody case to
demonstrate, "Yes, this victim did report it to someone," but it
would not eliminate the necessity of proving that domestic
violence occurred in a contested setting.
SENATOR GUESS referred to Section 5, which deals with domestic
violence, but doesn't deal with sexual assault. She referred to
(g) and asked why sexual assault wasn't included in that
section.
MR. HILYARD responded he couldn't think of a particular reason
that it was omitted.
MR. BAILEY responded that it wasn't specifically mentioned
because any assault under AS 11.41, which would include sexual
assault, was a part of the domestic violence definition in AS
18.66.990; "Therefore, it's covered," he said.
SENATOR GUESS asked if sexual assault is included in the
definition of domestic violence, so that sexual assault of
another parent, child, or domestic living partner would be
included under the definition of domestic violence.
MR. BAILEY said correct. AS 18.66.990 contains a list of
definitions, including "domestic violence." Chapter 11.41,
"Offenses Against the Person" includes everything from murder to
fourth degree assault.
SENATOR GUESS asked how "a child" is defined throughout the
bill. She referenced page 3, line 22 or page 4, line 1.
MR. BAILEY replied this was included because sometimes children
in the household are not children of the family; they may be
stepchildren, or visiting children. The purpose is to reduce,
as much as possible, incidences of violence in a child's life.
SENATOR GUESS said she agreed, but wanted statutory
clarification.
MR. BAILEY referred Senator Guess to AS 18.66.990 for a
definition of "domestic violence," and to Chapter 11.41,
"Offenses Against The Person" to find "sexual assault."
MS. TRACY GOULD testified in support of the amended status of HB
385. She relayed on June 21, 2001, a divorce primary custody
case was granted in Fairbanks. During the hearing the judge
refused to consider restraining orders and ignored a frightening
court-ordered custody investigator's report. The judge followed
that up with instructions for both parties to co-parent, despite
the dangers in the situation. Four days later, on June 25, with
the children a short distance away, there was [indisc.] thirty-
six times by her ex-husband. She said this was her best friend
and a dedicated mother and unfortunately she wasn't the only
parent murdered in that area; there were two, maybe three
others. She told members HB 385 would help with child custody
and domestic violence.
MS. CHRISTINE PATE, an attorney with the Alaska Network on
Domestic Violence and Sexual Assault, a family law attorney for
approximately ten years with Alaska Legal Services, and director
of the shelter program in Sitka for 2.5 years, said she has been
in her current position for approximately five years where she
runs a pro bono program for victims of domestic violence and
sexual assault in civil cases. She screens women who are trying
to leave violent relationships and are confronting obstacles in
the divorce and custody context. She said the answer to why
women in violent situations don't leave is because there are
many obstacles, whether financial, safety, or family.
Separation is the most frequent time of brutality for victims,
so they may decide to stay because it is safer. Many people
stay because they are afraid of losing their children in
divorce/custody cases. Once a victim has made the physical
decision to leave the batterer, custody litigation often becomes
a new front for the batterer to exercise power and control over
the victim. Batterers often threaten that victims will lose
custody if they leave the relationship.
MS. PATE continued that some studies have shown that abusive
fathers who contest custody cases win up to 70 percent of the
time. In Alaska courts she has seen a battered woman going into
court and ending up with either joint custody or losing custody
just because of daring to allege domestic violence or sexual
assault. There are many reasons for this, such as financial,
since the woman may not have as many financial resources. The
nature of domestic violence itself is that sometimes batterers
present better in court than the victim. Also, there is often a
lack of evidence; there isn't corroborating evidence since these
are things that happen in private. In addition, there is a lack
of training of many judges, child custody investigators, and
guardians ad litem, who are the decision-makers in many of these
cases. While the general understanding of domestic violence has
increased over the last 20 years, the evolution of state custody
laws has moved away from holding battering parents accountable
in the family law arena.
2:19 p.m.
MS. PATE told members Alaska family supports are focused on
mediation, joint custody, and family parenting. These concepts
stand in sharp contrast to social science literature about
domestic violence, and the recommendations of several national
organizations. [Indisc.] concepts of family law to protect the
safety of victims of domestic violence and the well being of
children. The rebuttal presumption against the parent in HB 385
would take some discretion out the hands of judges, discretion
that has been very harmful to victims of abuse. To the extent
victims feel they will lose custody in court or will get
unsupervised visits, they may not leave the relationship. She
referred to a specific situation where she had to explain to a
woman whose husband had been convicted of felony assault and who
had repeatedly abused her and her children, that there was no
guarantee the woman would get supervised custody in court. The
court process traumatized the woman. Victims continue to be
baffled by the court's lack of focus on their safety, and it
causes them to lose faith in the court system; when victims lose
faith in the system, they stop using it.
MS. PATE addressed joint legal custody, and said courts
routinely order an abusive parent to have joint legal custody of
children. Currently there is presumption in the law that joint
legal custody is in the child's best interest. The Alaska
Supreme Court has found that a history of abuse between parties
should make joint legal custody inappropriate. Despite the
precedent and knowledge that it's dangerous for victims to have
continuing communication and contact with abusers, family court
judges continue to put joint legal custody orders in place in
domestic violence cases.
MS. PATE said she wanted to speak in support of amending the
prime friendly parent factor in the best interest factors to
make an exception for victims of domestic violence. Explaining
the friendly parent provision of Alaska law to victims of abuse
is one of the hardest and most confusing things that she
counsels victims about. Harmonious co-parenting envisioned by
this factor is impossible and often dangerous in a family law
case. If the court believes there was domestic violence, it
might relax a parent's responsibilities under this factor.
However if the court does not believe the domestic violence
accusation or minimizes it, the protective parent is penalized
under this factor and perhaps accused of "parent's alienation
syndrome." That syndrome is a false syndrome started by Dr.
Richard Gardener (ph) and is widely discredited by professionals
and courts across the country. Under the current law, despite
concerns about safety, the woman must appear to be friendly to
the other parent and permit visitation or risk losing her
children. "Clearly this isn't the message we should be sending
to victims of abuse."
MS. RONDA BLOUGH, Kenai, referred to her proposed amendment to
HB 385, and said domestic violence could probably be prevented
if there were better custody laws. She said verbal violence has
been discredited; she believes with the addition of equal
custody access to both parents at the beginning of a divorce or
separation, a lot of one-time offenders or violations by people
who aren't normally offenders would probably be alleviated.
MS. PAIGE HODSON, Anchorage, testified as follows:
I am the person that brought this issue to the
attention of Representative McGuire. I'd like to tell
you a little bit about the background behind this bill
to put a personal face on it.
I am a divorced single mother of two children, ages 13
and 6. I am also a court-appointed special advocate
for abused and neglected children, a former volunteer
at the Intermission Crisis Nursery, PTA president, a
businesswoman, and a domestic violence survivor.
I was in an abusive marriage for 11 years. Physical
abuse occurred 1-2 times per year, and the remainder
of the time was permeated almost daily by verbal and
mental abuse. I was shoved, pushed into walls, thrown
against furniture, thrown off a deck, spit upon, and
called many unmentionable and profane names. I was
told I was stupid, ugly, and worthless. Most of these
things happened in front of my eldest child-- my
daughter.
I worked hard on trying to fix my marriage, naively
thinking it was something I could fix. I never
believed the police could help me. I thought I had to
handle it on my own. I struggled to help my family
and eventually convinced my husband to go to marriage
counseling. After four years of counseling, I
realized things were not going to change. In fact,
the therapist eventually had to see us separately in
fear for my safety.
As my daughter grew older, I saw more clearly the
impact of my husband's behavior on her. He was also
beginning to direct his abusive behaviors at her. I
knew I had to leave for her and my new infant son's
well being. I felt it was my responsibility as a good
parent to serve as an appropriate and safe role model.
TAPE 04-23, SIDE B
MS. HODSON continued:
When I told my husband of my wish to divorce he told
me, "I will say or do anything to prove you an unfit
mother. And if I can't, I will take the kids and you
will never see them again". I believed he would act
upon his threats. He did not prove me wrong. He
filed for custody and set about making every
outrageous allegation possible.
I trusted the judicial system, at the outset. I
trusted that the children and I would be protected and
the judge would construct visitation that was safe and
stable. As the process moved forward, however, I found
my world turned upside down. All the literature,
public service announcements and common sense told me
I was responsible for getting out and protecting my
kids, yet in the court deciding custody issues, I was
pressured and even threatened not to raise those
concerns.
The system was fraught with pressure at every turn to
accept an unstable and unsafe 50/50 custody schedule,
even for a nursing infant. I was blamed equally for
the violence. Amazingly, mine and my children's
reasonable fears about their father's abuse and
inappropriate parenting were pathologized. It was
implied by the court that if I didn't cave in to the
shared physical custody I would be punished by having
sole custody awarded to the children's father
Suddenly, the domestic violence I experienced was
euphemized as "high conflict divorce." His verbal
abuse of the children and me was deemed "communication
problems." Moreover, incidents of child abuse and
physical domestic violence were minimized and called a
"difference in parenting styles."
The toll on our eldest child of unsupervised and
increasing visitation [indisc.] the court was
enormous. She would kick, struggle, scream and cry as
he carried her bodily from my home for visitation.
She chewed her hair and pulled it out. She picked at
her skin so often it bled. She had stomachaches prior
to visits with her father, crying jags, and although
tested as a gifted child, she nearly failed fourth
grade. She reached out to many trusted adults for
help, yet the court failed to respond.
The baby was returned from each visitation dehydrated,
hungry and with diaper rash so severe he was bleeding.
Once, as a toddler, he was returned with a black eye
and disclosed his father had hit him.
Ultimately I prevailed, but it was only after being
dragged through two full custody trials, which ended
up being nearly five years of litigation. I have sole
legal and primary physical custody, but my ex-husband
was afforded substantial unsupervised visitation. The
children are still not protected. My daughter now
says that when the verbal abuse begins that she copes
by "going off to another place in her head". My
little boy tells me he tries to hide behind furniture
or pretend he doesn't exist.
My story isn't as egregious as others you will hear
today. While trying to understand what was happening
to me in court, I found that my case was
representative of the systemic failure of the courts
to protect domestic violence victims and their
children. I found women and children all over the
country - moreso in Alaska - with similar experiences.
I found an alarming percentage of abusive parents
being awarded sole custody.
The bill before you is the result of nearly 3 years of
researching and networking to find the best statutes
in the country, with strong support from many
professional organizations involved with the
protection of children. This bill brings our child
custody statutes in line with what the Legislature has
already intended in its child protection statutes and
with what has been recommended by Congress and the
National Council of Juvenile and Family Court
Justices. It also brings our dated statutes in line
with the voluminous current research about the effects
of domestic violence on children and parenting.
CHAIR DYSON asked Mr. Hilyard if the sponsor had seen the
proposed amendment, and received confirmation this was correct.
MR. WILLIAM BOBRICK, a private citizen from Anchorage,
underscored the need for this legislation. He said he was the
former chair of the board of the Alaska State Council on
Domestic Violence and Sexual Assault, and testified this was a
common sense approach of rewarding good behavior rather than bad
behavior. The government should not be rewarding parents who
beat up their spouse with either joint or sole custody. He said
that kids figure out if one spouse beats up the other and still
gets custody, the message is "that must be o.k." so that
behavior continues.
CHAIR DYSON asked for Mr. Hilyard's response to Ms. Blough's
amendment.
MR. HILYARD said Ms. Blough's concerns are more broadly
applicable to the state's child custody laws, whereas this bill
addresses the specific situation of temporary custody when
there's been a history or pattern of domestic violence in the
relationship. He did not express support of the amendment at
this time because of wanting to review it with the attorney
general's office and the court system. He said from a general
legal perspective, Mr. Bailey thought it might not be most
appropriate to place the amendment in HB 385.
CHAIR DYSON recommended that the sponsor and the attorney
general's office research this, and amend it in Senate
Judiciary, if necessary.
SENATOR GUESS commented she had researched how "sexual assault"
fits in with "domestic violence." She suggested review of the
definition of "household member" under the domestic violence
statute to ensure that reference to "a child" was similar to the
domestic violence statute regarding "household member."
MR. HILYARD asked if she was talking about the broader "a child"
versus "the child."
SENATOR GUESS responded that yes, she agreed with Mr. Bailey on
his definition of "a child," but was not sure, given the
definition of domestic violence if his definition of "a child"
fits.
MR. HILYARD said he would be happy to research this and let
Senator Guess know by the end of the day.
SENATOR GUESS moved to report CSHB 385 (JUD), version W, out of
committee with individual recommendations and the attached zero
fiscal note.
CHAIR DYSON asked if there was any objection. There being none,
it was so ordered.
| Document Name | Date/Time | Subjects |
|---|