Legislature(1993 - 1994)
03/11/1994 03:00 PM House HES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE HEALTH, EDUCATION AND SOCIAL SERVICES
STANDING COMMITTEE
March 11, 1994
3:00 p.m.
MEMBERS PRESENT
Rep. Cynthia Toohey, Co-Chair
Rep. Con Bunde, Co-Chair
Rep. Gary Davis, Vice Chair
Rep. Al Vezey
Rep. Pete Kott
Rep. Harley Olberg
Rep. Bettye Davis
Rep. Irene Nicholia
MEMBERS ABSENT
Rep. Tom Brice (Excused)
OTHER LEGISLATORS PRESENT
Rep. Cliff Davidson
COMMITTEE CALENDAR
*HB 422: "An Act relating to custody and visitation
rights."
HEARD AND HELD
(* First public hearing.)
WITNESS REGISTER
CLAIRE STEFFENS, Attorney
P.O. Box 101847
Anchorage, Alaska 99510
Phone: (907) 276-5846
Position Statement: Testified in support of HB 422
(spoke via teleconference)
TERRI LAUTERBACH, Legislative Legal Counsel
Division of Legal Services
Legislative Affairs Agency
130 Seward St.
Juneau, Alaska 99801
Phone: (907) 465-2450
Position Statement: Answered questions on the CS for HB 422
RUSSEL BLOME
P.O. Box 231836
Anchorage, Alaska 99523
Phone: (907) 349-4053
Position Statement: Testified in support of HB 422
(spoke via teleconference)
PATRICIA NEAL
P.O. Box 2059
Wrangell, Alaska 99929
Phone: (907) 874-2529
Position Statement: Testified in support of HB 422
(spoke via teleconference)
WADE WAHRENBROCK
P.O. Box 628
Soldotna, Alaska 99669
Phone: (907) 262-9033
Position Statement: Testified in support of HB 422
(spoke via teleconference)
TIN MAROK
HC 2 Box 707
Soldotna, Alaska 99669
Phone: (907) 262-7873
Position Statement: Testified in support of HB 422
(spoke via teleconference)
GUSTAVO ACEVEDO
P.O. Box 1931
Bethel, Alaska 99559
Phone: (907) 543-3462
Position Statement: Testified in support of HB 422
(spoke via teleconference)
TRACY DRISKILL, Founder
Family Affirmative Action
P.O. Box 875731
Wasilla, Alaska 99687
Phone: (907) 373-1440
Position Statement: Testified in support of HB 422
(spoke via teleconference)
TAMMY STEELE
P.O. Box 870535
Wasilla, Alaska 99687
Phone: (907) 373-3261
Position Statement: Testified in support of HB 422
(spoke via teleconference)
JIM COLVER
P.O. Box 427
Palmer, Alaska 99645
Phone: (907) 745-8474
Position Statement: Testified in support of HB 422
(spoke via teleconference)
STEPHANIE McBRIDE
3011 Admiralty Bay Dr.
Anchorage, Alaska 99515
Phone: (907) 349-5626
Position Statement: Testified in support of HB 422
(spoke via offnet)
JIM ARNESON, President
Alaska Family Support Group
P.O. Box 111691
Anchorage, Alaska 99511-1691
Phone: (907) 344-7707
Position Statement: Testified in support of HB 422
(spoke via teleconference)
JERRY CHRISTENSEN
HC 30 Box 5348
Wasilla, Alaska 99654
Phone: (907) 376-7901
Position Statement: Testified in support of HB 422
(spoke via teleconference)
GARY MAXWELL, Statewide Coordinator
Children's Rights Council of Alaska
P.O. Box 92083
Anchorage, Alaska 99509
Phone: (907) 274-7358
Position Statement: Testified in support of HB 422
(spoke via teleconference)
DIANNA ALCANTRA
17421 Teklaniker
Eagle River, Alaska 99577
Phone: (907) 696-4446
Position Statement: Testified in support of HB 422
(spoke via teleconference)
KENNETH KIRK, Attorney
900 W. 5th Ave., #730
Anchorage, Alaska 99501
Phone: (907) 279-1659
Position Statement: Testified in support of HB 422
(spoke via teleconference)
KERI BASLER
5800 College Dr.
Anchorage, Alaska 99504
Phone: (907) 338-1824
Position Statement: Testified in support of HB 422
(spoke via teleconference)
JAYNE ANDREEN, Executive Director
Council on Domestic Violence and Sexual Assault
P.O. Box 111200
Juneau, Alaska 99811-1200
Phone: (907) 465-4356
Position Statement: Testified in opposition to HB 422
SHERRIE GOLL, Lobbyist
Alaska Women's Lobby
P.O. Box 22156
Juneau, Alaska 99802
Phone: (907) 463-6744
Position statement: Testified in opposition to HB 422
PREVIOUS ACTION
BILL: HB 422
SHORT TITLE: CHILD CUSTODY AND VISITATION RIGHTS
SPONSOR(S): REPRESENTATIVE(S) BUNDE
JRN-DATE JRN-PG ACTION
01/31/94 2206 (H) READ THE FIRST TIME/REFERRAL(S)
01/31/94 2206 (H) HES, JUDICIARY, FINANCE
03/11/94 (H) HES AT 03:00 PM CAPITOL 106
ACTION NARRATIVE
TAPE 94-44, SIDE A
Number 000
CHAIR TOOHEY called the meeting to order at 3:05 p.m., noted
members present and announced the calendar. She brought HB
422 to the table.
HB 422 - CHILD CUSTODY AND VISITATION RIGHTS
Number 050
REP. CON BUNDE, Prime Sponsor of HB 422, stated that before
the committee was a committee substitute (CS) for HB 422 and
asked that the CS be moved.
REP. G. DAVIS made the motion to adopt the CS for HB 422.
CHAIR TOOHEY, hearing no objections, stated that the CS was
so moved.
REP. BUNDE addressed the CS. He stated that one of the
greatest consequences of the rising divorce rate is the
child's lack of relationship with two parents. He also
indicated that children from broken homes tend to engage in
sex at an earlier age and pose a greater risk to themselves
for exposure to the AIDS virus. He then asserted that
children of divorced parents have a right to maintain a
relationship with both parents.
REP. BUNDE said the amount of child visitation ordered by a
court is of great concern to many parents and is directly
related to the amount of child support a noncustodial parent
will have to pay. However, he said the bill does not
provide opportunity to lower child support payments. It
provides the opportunity for noncustodial parents to gain
access to their children and to have an ongoing relationship
with them.
REP. BUNDE maintained that the legislation addresses the
problem of children being used as pawns in domestic disputes
between the parents. He said the proposal would provide
minimum visitation guidelines for parents who do not have
shared custody or joint custody of their children. Present
statutes do not include any type of minimum visitation
guidelines, resulting in the children being placed in the
center of emotional arguments.
REP. BUNDE indicated that the CS allows for flexibility for
visitation times and the ability of a parent to enforce
court ordered visitation. He specified that both versions
of the bill include a provision for notice of relocation,
which requires that the court and the noncustodial parent be
notified 60 days in advance of the custodial parent's move.
REP. BUNDE further stated that the proposal addresses
intentional noncompliance, which is also defined as
custodial interference. He explained that if a parent is
found guilty of custodial interference, they would incur
monetary damages, and the noncustodial parent would be
awarded at least twice the amount of visitation time that
had been denied because of custodial interference.
REP. BUNDE asserted that passage of the legislation would be
a step forward for children and indicated it is the parents
who are divorced, not the children. The intent of the
legislation is to preclude children from being used as
negotiating tools during and after a divorce. He maintained
that the children deserve the attention of both parents in a
consistent manner and urged the support of the committee.
He then indicated that he would like to hear testimony via
teleconference and that he would be happy to answer any
questions.
(Chair Toohey stated for the record that Rep. Olberg arrived
at 3:09 p.m.)
CHAIR TOOHEY asked for teleconference testimony from
Anchorage.
Number 226
CLAIRE STEFFENS, Attorney, testified via teleconference in
support of HB 422. She stated that she supported the
legislation, even though it would decrease court case loads
by half and put divorce attorneys out on the street. She
said, as a result of the proposal, children will no longer
be used as weapons between the parents. She maintained that
the need for the legislation is unquestioned and it provides
for good enforcement. She also stated that the bill would
not affect the child support program, but would maintain the
distinction between child support and access of the child to
the noncustodial parent. She felt the legislation provides
for enforcement pertaining to denial of visitation and that
the parent who is being denied visitation has a remedy to
the problem by way of the courts. Society needs to take
more stringent steps in supporting the child's need to have
access to both parents. She suggested that society is
suffering the malaise of children who in some form have been
abandoned by one or both parents in a divorce situation.
MS. STEFFENS supported the concept of a 60 day notice of
relocation. She said it would be instrumental in protecting
custodial parents from "kidnapping" their children.
MS. STEFFENS further stated that she did have one problem
with the bill as written.
Number 365
CHAIR TOOHEY asked Ms. Steffens if she was reading from the
work draft.
MS. STEFFENS said yes. She indicated that in Section 6 the
language seemed to provide for an increase of at least 25%
in visitation time. She suggested that perhaps a period be
put after the word "time" on line 12 and delete the rest of
the sentence. She explained that the portion of the
sentence that should be deleted is unclear. She asserted
that the line could be interpreted to mean that only people
who have 4.5% visitation time would be subject to having the
court review their visitation orders. She said that no one
has that little visitation time. She also said that the
legislation does not apply to those who have no visitation
time. She said by leaving off that portion of the sentence,
the provision would apply to anyone who has at least 29%
visitation time. It would make the minimum standard
applicable to all people.
Number 434
REP. BUNDE reiterated that Ms. Steffens' recommendation
would be to delete the phrase "of at least 25 percent and
the modification is in the best interests of the child." He
asked if she would respond positively to an increase in
visitation time that is in the best interest of the child.
MS. STEFFENS indicated that it is not necessary because the
court is required to make the visitation order in the best
interest of the child anyway.
Number 460
CHAIR TOOHEY pointed out to the committee that Terry
Lauterbach, the drafter of the legislation, was available
for questions.
Number 461
TERRY LAUTERBACH, Legislative Counsel, Division of Legal
Services, Legislative Affairs Agency, testified in Juneau on
HB 422. She stated in regards to Ms. Steffens' issue that
the section would only apply to people with less than 5%
custody, she felt it is not how the language reads, it would
be whether the increase would be 25%. It would apply to
anyone with less than 25% now. She said, "The 25% that they
have plus another 25% is still going to keep them under 30
(percent). So, anyone who now has visitation rights of less
than 25% would benefit or be able to use this law to ask for
modification." She further stated that she has no
objection, if it's the committee's desire to make a change
that would allow any sufficient increase.
MS. LAUTERBACH stated that the phrase, "...modification is
in the best interests of the child...," is not duplicative
as indicated by Ms. Steffens. She said that page 5, line
10, states that this constitutes a change requiring
modification. She also added that even though there may be
a court ruling which says that the best interest of the
child must be followed, it doesn't mean that there couldn't
be a lack of clarity. She felt it was safer to have the two
statements within the one act. She stated that she had no
legal objection if the phrase "of at least 25 percent" were
to be taken out, but recommended that the language remain as
written.
Number 532
CHAIR TOOHEY asked Ms. Lauterbach, if the percentage goes
above 30, would the rate of child support change?
MS. LAUTERBACH indicated that the rate may or may not
change, and pointed out that the calculations are different
for shared custody. She also stated that there are many
different factors involved in child support, and a person
could end up paying the same amount, even though that person
is above 30%. She explained that it happens in shared
custody situations where child support is initially figured
as if the person has full custody and then is multiplied by
1.5, because it's recognized that taking care of two
households costs more than taking care of one. She said,
"...that often can get you right back up to what you would
pay if you had no custody at all. So, it's not always a
change in child support, especially if there's a huge
disparity in the income of the two parents."
Number 568
CHAIR TOOHEY asked for further testimony from Anchorage.
Number 571
RUSSEL BLOME, a noncustodial father, testified via
teleconference from Anchorage in support of HB 422. He
stated that the proposed legislation will benefit both
children and parents alike. He said that by establishing
visitation guidelines, children will have access to both
parents, which will contribute to the child's well being.
He also said that it is well documented that parents with
visitation pay support in full and on time up to 90% of the
time. He indicated that Civil Rule 90.3 requires payment of
child support and that the passage of HB 422 would require
certain levels of visitation, which will provide a balance
of support and visitation.
MR. BLOME further stated that the legislation will also
allow more uniform visitation. He said both parents will be
able to plan time more effectively and bring more order into
their lives. He also felt that a uniform award of
visitation would likely reduce appeals of arbitrary awards,
subsequently reducing the great burden on the court system
and the amount of legal fees for all those involved.
MR. BLOME asserted that the failure to pass HB 422 will have
serious consequences, citing that parents without visitation
pay child support less than 40% of the time and that a child
endures unnecessary pain and suffering from not being
allowed to have visitation with one parent. He felt that
the children are the victims being held hostage by the
custodial parent who is depriving them of the emotional
security of the two parent family.
Number 637
CHAIR TOOHEY indicated that Rep. Cliff Davidson was present
and asked him to join the committee. She then asked for
further teleconference testimony.
Number 645
PATRICIA NEAL, a custodial parent married to a noncustodial
father, testified via teleconference in support of HB 422.
She stated that her husband is back in court for the second
time in eight months because court orders do not work. She
said her concern is how can divorced parents be assured that
the legislation will be enforced by the courts. She
indicated that currently there is a law that stipulates a
$200 fine for denial of visitation, yet it is not enforced.
She further stated that she strongly supports the 60 day
notice of relocation and related to the committee her
husband's experience with his ex-wife who left the state
with his nine year old daughter after he filed a change in
custody. She said the courts did nothing. She asserted
that the legislation is not about child support, it is about
the rights of the child no matter which parent has custody.
Ms. Neal said equality would be brought to the system.
Number 711
CHAIR TOOHEY asked for further testimony.
Number 712
WADE WAHRENBROCK, a noncustodial parent, testified via
teleconference in support of HB 422. He stated that the
proposed legislation will offer balance to children. He
then referred to the CS, page 3, line 7, and stated that the
provision addresses Christmas vacation. He said the section
is nonnegotiable and that geographic location could be a
problem when trying to split up the Christmas holiday. He
asked the committee to reconsider the provision.
Number 752
REP. BUNDE asked Mr. Wahrenbrock to read further down page
3, line 20, and indicated that the court may vary the
requirements under the section in the consideration of age,
circumstances, and needs of the child. He pointed out that
there is flexibility within the legislation.
MR. WAHRENBROCK asked, if his ex-spouse decided to relocate
to another area, would the court have to review the case
each time she relocated?
REP. BUNDE deferred to Ms. Lauterbach.
MS. LAUTERBACH indicated that unrelated to the proposed
legislation there is always the option to modify visitation
or custody when there is a material change in circumstance.
She said it was her understanding that movement of a child
out-of-state or a very long distance would constitute some
type of modification.
MR. WAHRENBROCK said he hoped the issue could be addressed
between the parents instead of building the guidelines into
statute for them.
Number 789
TOM MAROK, a noncustodial parent, testified via
teleconference in support of HB 422. He stated that he
would like to see the Christmas holiday be divided on
Christmas Eve and not the morning of Christmas. He also
referred to the second paragraph and second sentence of the
sponsor statement that reads, "The amount of visitation
ordered by the court is directly related to the amount of
child support a noncustodial parent will have to pay." He
asked for further clarification.
Number 818
REP. BUNDE explained that if a person has joint custody,
less child support is paid as opposed to having only
visitation rights at 5%. He indicated that the longer a
child is with a noncustodial parent, the less child support
the visiting parent must pay.
MS. LAUTERBACH stated that visitation is a term applied to
what the parent who is not the custodial parent has. If
visitation goes above 30%, both parents are considered to be
custodians and neither one has visitation rights. She
further indicated that the reference made in the sponsor
statement saying that the amount of visitation is directly
related to child support is not exactly accurate. She said
there is no difference between the child support paid for 5%
visitation and 29% visitation.
MR. MAROK agreed and felt the statement should be clearer.
REP. BUNDE said that the term more accurately should be
custody; the amount of custody versus visitation has an
impact on the amount of child support.
MS. LAUTERBACH said, "And even then, the impact is...
there's a bright line at 30% where the calculations change.
So, it's only if you're above or below 30% that the
calculations will be different."
MR. MAROK asked if there would be a noncustodial parent if
the percentage is above 30.
MS. LAUTERBACH explained that both parents would be
considered custodians. One is called an obligor because
they pay the child support, and the other parent is called
the custodian, but it is an inaccurate use of terms because
there is no visitation rights.
MR. MAROK thanked Ms. Lauterbach for her clarifications.
Number 862
CHAIR TOOHEY asked for further testimony.
Number 863
GUSTAVO ACEVEDO, a noncustodial parent, testified via
teleconference in support of HB 422. He stated that he has
had many problems trying to visit his daughter and indicated
that over the four years since he has been divorced, he has
only seen his daughter "for about three or four months." He
said his ex-wife is denying his visitation for no reason.
He said he had to fly to Anchorage to find a lawyer to
handle his case. He said he has had no visitation with his
daughter in over three years. He indicated that his ex-wife
has given away two other of her children from two different
fathers and he fears she will give away his daughter, too.
He stated that he and his ex-wife do have a visitation
agreement, but she continually denies him visitation and
blames the situation on him.
Number 948
TRACY DRISKILL, Founder, Family Affirmative Action,
testified via teleconference in support of HB 422. She
stated that she is the custodial parent of two children and
a second wife to a noncustodial father of one. She
explained that her children from her first marriage have
very liberal access and phone contact with their natural
father and indicated that the children need "daddy in their
life just as much as they need mommy." She further
explained that her children are leaders in their school,
have no problems interacting with others, and felt they
directly benefit from spending time with both their parents,
"hassle free." She then explained that in the past eight
years her husband has spent approximately $60,000 so he
could maintain a relationship with his daughter. He has
been to court four different times due to denial of
visitation. She said the first time the judge ordered the
parents to sit down and work out an equitable schedule. She
explained that the order did not work as the ex-wife felt
that visitation for two or three days per month was
sufficient. She said each time her husband went to court
his child support was increased and he was held responsible
for all or part of his ex-wife's attorneys fees. He then
would receive an increase in visitation, but each time there
was successive denial of court ordered visitation. Ms.
Driskill said no penalties were imposed, only "just a mere
slap on the hand and told not to interfere with visitation."
She indicated that her husband's daughter is nine years old
and wets her pants and bed and is not involved in any
activities because she has no drive. She further indicated
that the child is below average in school and has
disciplinary problems both in and out of school.
MS. DRISKILL stated that up to 70% of grown children who
commit crimes come from broken families and many have stated
in counselling that they are angry with the system. She
said there is strong evidence to prove that there is a great
lack of noncustodial influence in children's lives after
divorce.
MS. DRISKILL stated that it is a known fact that if
custodial parents spend more time with the children more
money will be spent. She felt that anything less than 29.5%
minimum visitation is a crime against the children.
TAPE 94-44, SIDE B
Number 000
CHAIR TOOHEY asked for further testimony and requested that
witnesses keep their testimony under three minutes.
Number 002
TAMMY STEELE, a custodial parent of two children and wife of
a noncustodial parent, testified via teleconference in
support of HB 422. She stated that her husband has
undergone constant interference with his visitation and
without passage of the bill, "we have no place to go." She
said that the proposal offers guidelines that would help her
husband gain what is rightfully his. She indicated that
when the custodial mother started interfering with her
husband's visitation, the child's grades went from A's to
D's or her work was incomplete. She indicated that the
child's whole attitude changes and is very functional when
there is consistent visitation. She felt the child would
end up being nonfunctional in society if nothing is done to
ensure consistent visitation. She urged the passage of HB
422.
Number 118
CHAIR TOOHEY thanked Ms. Steele for her testimony and
continued on with testimony from Mat-Su.
Number 120
JIM COLVER testified via teleconference in support of HB
422. He stated that the bill is a children's rights bill,
guaranteeing a child's access to both parents. It would
allow for the minimum amount of court ordered visitation
with a noncustodial parent, regardless of the outcome of the
divorce. He maintained that society should take a stance
that would advocate the participation of both parents in a
continuing relationship with their children. He stated that
often children are the victims of the high divorce rate.
MR. COLVER further stated that a book by Judith Walderstein,
"Second Chances: Men, Women and Children, a Decade after
Divorce," chronicles a ten year study of 16 divorced
families. He read excerpts from the book that urges that
children have real fathers to encourage them in particular
times of life and that the study shows that good
father\child relationships are critically important to the
psychological well being and the self-esteem of children of
divorce. He indicated that the father's consistent role is
beneficial to the child's emotional life, self-esteem, self-
image.
CHAIR TOOHEY reminded Mr. Colver that the legislation is
gender neutral.
MR. COLVER agreed and said he hoped that the committee would
obtain copies of the aforementioned book. He felt that many
societal problems can be attributed to the breakdown of the
family. He asserted that the bill would result in lower
court costs and attorneys fees, would reduce visitation
litigation, and would not result in lower child support
payments. He further indicated that in Section 2 there
needed to be a "rebuttal presumptuous" within 29% so the
courts would not wander away from the guidelines. He also
recommended that the title be "tightened up" so it does not
become a vehicle for anyone in other committees to change
the concept.
Number 246
STEPHANIE McBRIDE, the wife of a noncustodial father,
testified via offnet in support of HB 422. She stated that
her husband has been denied visitation time and time again.
She said she and her husband have two children between them
and she would not interfere with visitation. She explained
that her children are happy and self-confident because they
have a father in their life. She indicated that her
husband's daughter has a lack of self-confidence and
problems in school. She said she and her husband worry
about "where her head will be at as far as responsibility
for herself and her body." She indicated that the attorney
fees involved are astronomical. She supported the basic
minimum guidelines because she felt legal fees would be
reduced tremendously and that not every judge has an inside
view of how the relationships are between the parents and
children.
Number 305
CHAIR TOOHEY reminded everyone that Ms. Steffens said she
would be out of a job if the bill passes. She then asked
for further testimony.
Number 307
JIM ARNESON, President, Alaska Family Support Group,
testified via teleconference in support of HB 422. He
stated that the legislation relates to guidelines for
parental involvement and guaranteeing arrangements for
children after a divorce or when parents live apart. He
said the legislation would provide the remedy to parental
interference. He asserted that parental support is just as
important as financial support. He said it is estimated
that over 10,000 children in Alaska are denied access to
both of their parents each year. Mr. Arneson said the
rights of children to enjoy a relationship with both their
parents is paramount to their all around well-being. She
also pointed out the relationship of those people who are in
prison and the amount who come from broken homes. He stated
the legislation would go far in promoting responsible
parenting of children after divorce. He said society should
be willing to shoulder the burden if it chooses to do
nothing to prevent children from being denied access to both
parents. He urged the support of the committee.
Number 490
JERRY CHRISTENSEN, a noncustodial parent, testified via
teleconference in support of HB 422. He stated he has
endured a lot of turmoil and bitterness since his divorce
five years ago, which has resulted in denied visitation. He
indicated that for the last three years he has been unsure
of whether he would be able to see his son from one week to
the next. He said it is obvious in his case that a decision
cannot be worked out, and the proposed legislation could
provide guidelines to help resolve his situation. He
further indicated that children have no active part in the
process and the proposal would serve the needs of the
children. He related scenarios where he has gone to the
designated meeting place to pick up his son, and the mother
and son never showed up or arrived two hours late. He urged
the committee to support HB 422.
Number 556
GARY MAXWELL, Statewide Coordinator, Children's Rights
Council of Alaska, testified via teleconference in support
of HB 422. He stated that he works for a law firm as a
paralegal and they mainly work with denied visitation. He
suggested that there perhaps would be two major objections
to the mandatory visitation guidelines. First, he stated
that the mandatory visitation is inflexible and indicated
that the courts always recognize that visitation schedules
need to be flexible both for custodial and noncustodial
parents, citing that not only can an individual parent's
daily activities change, but so can the school activities of
the children. Secondly, he said that it could be argued
that child support could be affected. He said, "This is a
facetious argument that is without merit." He explained
that he went through the figures for a sole custody
calculation based on the father having net income of $40,000
and the mother netting $20,000 per year and the father
getting 28% of visitation. He said the father would end up
paying $667.00 per month in child support.
Number 607
CHAIR TOOHEY asked Mr. Maxwell if he was reading from the
work draft or from the original bill.
MR. MAXWELL indicated that he was making reference to the
working draft. He further stated that if the same numbers
are formulated in a joint custody calculation, where
visitation is increased to 34% for the father and 66% for
the mother, the child support amount would total $490.00 and
the father would have more disposable income to spend when
he's exercising his access with his children. He said it
was his opinion that the father will inevitably spend that
money and more on the children when they are spending more
quality time with him.
Number 638
MS. LAUTERBACH stated that she was confused by Mr. Maxwell's
example because nothing in the CS would allow a parent up to
34% and the minimum visitation awarded is 29.5%
MR. MAXWELL replied that he was using a hypothetical example
to show the difference between calculations of sole and
shared custody.
MS. LAUTERBACH said she was unsure as to how the example is
relevant to the bill.
MR. MAXWELL maintained that it relates to the argument that
child support will be drastically affected.
CHAIR TOOHEY thanked Mr. Maxwell for his testimony. She
then asked for testimony from Dianna Alcantra.
Number 667
DIANNA ALCANTRA, a wife to a noncustodial parent, testified
via teleconference in support of HB 422. She stated that
the 29.5% visitation is too little. She felt the argument
that it would interfere with child support is ludicrous and
said the money goes to the child not the other parent. She
said, "If the custodial parent has a reduction in child
support, the noncustodial parent has an increase in which
they would spend on the children. I think it's a shame that
it was reduced to 29.5% to avoid that." She further
indicated that she and her husband have been in the courts
since 1990. She said last year a judge had to order the
custodial parent to allow her husband's son to play Allstar
baseball, and the mother's objection was that the game was
during the summer and the husband was receiving a credit for
visitation of $35.00 per day for the child. The mother did
not want to lose the $35.00. She further explained that
visitation has been interrupted and the mother has moved out
of the state with her husband's son. She explained that
when there are no guidelines set down, it leaves the parents
to their own interpretation. She related a situation where
the custodial parent thought every other weekend visitation
meant for Saturday and Sunday, while the noncustodial parent
interpreted it to mean Friday night through Sunday night.
She said at least $10,000 has been spent over the last
several years arguing over the interpretation of a bad
visitation schedule. She said children desperately need the
proposed legislation to ensure their rights to access of
both parents and to protect them from being used as
"bargaining chips" for money.
Number 744
CHAIR TOOHEY asked Ms. Lauterbach if the bill, in any way,
forces an unwilling parent to visit his or her child.
MS. LAUTERBACH said there is no law or court that can force
an unwilling parent to visit a child.
CHAIR TOOHEY asked for further testimony.
Number 748
KENNETH KIRK, Attorney, testified via teleconference in
support of HB 422. He stated that while the minimum
visitation is the most controversial portion of the bill,
there are a number of other very good provisions. He said
the biggest problem is the issue of what the standard amount
of visitation is. He said it varies from judge to judge and
case to case. He indicated that approximately every two
years Anchorage has a new judge and one is never sure what
recommendation will come from custody investigators. He
asserted that a set schedule makes it easier for people to
negotiate because they know what the standard is going to
be. He indicated that years ago it was the conventional
wisdom that a child have one primary parent with occasional
visits from the other parent. He said many people are still
going by that concept, which has proven to be disastrous.
He further stated that the judicial system is "a lousy way
to resolve custody battles." He said judges do not always
have good insight on cases and often they have limited time
or have misjudged somebody. He then recommended that there
be an increase to the 29.5% visitation to at least above 30%
so that each parent's income would be taken into account
when calculating child support. He also suggested that the
phrase "...of at least 25 percent... and the modification is
in the best interests of the child," should be deleted from
page 5, line 12, or that the percentage should be dropped to
10 or 15 percent to make it more reasonable.
Number 842
CHAIR TOOHEY asked if there was more testimony on
teleconference. She was told there was testimony to be
heard from Anchorage.
Number 843
KERI BASLER, Member, Alaska Family Support Group, and a
custodial parent of two and wife to a noncustodial parent,
testified via teleconference in support of HB 422. She
stated that she and her husband have a very fair visitation
schedule and explained that her own parents used guidelines
similar to those within the proposal and she never felt that
either parent was unaccessible. She said children across
the state need to take the bill into serious consideration
to protect their rights of access to both parents. She
maintained that the bill would provide those parents who can
not find their own solution to visitation or who withhold
visitation the necessary guidelines to a solution that would
ensure that the best interests of the children are served.
She asserted that the intent of HB 422 is to be a guideline.
She said the definition of a guideline is a recommendation
or principle for determining a course of action. Ms. Basler
also indicated that those opposing the bill allege that the
supporters have financial motivations. She said, "If you
calculate the schedule, it does not meet the 30% threshold
required for visitation credit." She asserted that the
Alaska Family Support Group's intention is to be fair and to
do what's in the best interest of the children. She urged
the support of HB 422.
Number 891
CHAIR TOOHEY asked if there was further teleconference
testimony. There was none. She closed teleconference
testimony and asked for testimony in Juneau.
Number 892
JAYNE ANDREEN, Executive Director, Council on Domestic
Violence and Sexual Assault, testified in opposition to HB
422. She stated that in cases where family violence exists,
a very structured child visitation is important to
decreasing future violence toward the victim. She said that
the guidelines provided within the bill go too far and do
not take into consideration the needs of the parents and
children as well. She also said the 60 day relocation was
restrictive, especially to Alaskans with changing lifestyles
and the fluctuation of seasonal employment. She said the
provision is unrealistic. Also, she said when a custodial
parent is a victim of violence, whether or not the
perpetrator is the father in question or is a new partner,
the bill could preclude the woman from seeking shelter for
herself and her children. A person cannot plan 60 days in
advance if they need to go into a domestic violence shelter;
they need to act quickly. She suggested, to avoid
jeopardizing the amount of child support, that as a rule
single parent families are at the poverty level. She said
either the state picks up the liability or the family lives
at substandard levels.
TAPE 94-45, SIDE A
Number 000
REP. BUNDE directed Ms. Andreen's attention to page 3, line
20, and stated that the courts may vary requirements
depending on age, circumstance, and needs of the child and
also if the courts find that the requirement might cause
harm to the child. He felt the provisions addressed Ms.
Andreen's concerns.
CHAIR TOOHEY asked Sherrie Goll to testify.
Number 027
SHERRIE GOLL, Lobbyist, Alaska Women's Lobby, testified in
Juneau in opposition to HB 422. She stated that she is more
comfortable with the changes in the CS regarding the change
in the minimum visitation schedule. She said it would not
automatically "bump every case into shared custody, which
would of course lower the child support." She asserted that
the minimum visitation schedule seemed completely unworkable
as written in the original bill and was not in the best
interest of the children, citing that the guidelines were so
specific to the hour that it seemed the children would have
to have their tooth brush packed at every moment. She
offered that children shouldn't be made to move place to
place, and if the parents did want to engage in that type of
schedule, perhaps the parents should have to move in and out
of the house. She then noted that some of the prior
testimony referred to the provisions within the legislation
as guidelines that could be changed, but she indicated that
it does say "minimum visitation schedule" and it could be
passed into law as the minimum.
MS. GOLL also noted that in the CS it requires the court to
decrease the percentage of visitation if the visiting parent
requests it but not if the custodial parent requests it.
She said she did not understand the provision. She then
referred to the provision that made it a crime to interfere
with visitation. She asked if there was a fiscal note from
public safety as to how it will be enforced. She commented
that there doesn't seem to be any enforcement of criminal
nonsupport of children and further wondered how the state
would start enforcing yet another criminal law. She
recommended that if the state is going to make a crime of
custodial interference, that it also be a crime for a parent
to not visit their child when visitation has been awarded.
MS. GOLL felt that many parents do not have schedules that
fit the minimum visitation schedule, citing those who are
seasonal or shift workers. She indicated that the 60 DAY
relocation notice is inflexible. She then said that she is
sorry that there are so many parents in the state who have
been unable to resolve their visitation schedules and feel
that the proposed legislation is the answer for them.
MS. GOLL further stated that she had received a letter from
a divorced parent that related to her the existence of
seminars for divorcing parents. She explained that the
seminars were taking place in other states and recommended
supporting such an idea that would make it either mandatory
or at least available to divorcing parents. She felt the
seminars might be able to offset future problems regarding
visitation. She reemphasized that the involvement of both
parents in the children's lives is very important, but she
is not sure that the proposed legislation is the way to
resolve visitation problems.
Number 250
CHAIR TOOHEY referred to page 3, line 20, and stated that
judges may vary from the requirements in consideration of
age, circumstance, and the needs of the children.
MS. GOLL directed the committee's attention to page 3, line
26, and asked for an explanation of why a noncustodial
parent would have the opportunity to decrease the amount of
visitation time and yet the custodial parent would not.
CHAIR TOOHEY asked if the bill addresses those parents who
do not want to visit their child. She did not want to have
any parents being forced to visit their child.
REP. BUNDE indicated that the provision addresses the
custodial parent who doesn't want the visiting parent to
have access to the child, so they decrease the amount of
visitation time. He asserted that nowhere in the proposal
does it require a parent to visit the child.
Number 313
MS. LAUTERBACH explained to Rep. Toohey that the state
cannot force a noncustodial parent to visit their child.
She said the bill allows a visiting parent to not be awarded
the full 29.5% if they don't want it. They can ask for 10%,
but they would not start out at 29.5% if they did not want
to.
Number 339
CHAIR TOOHEY closed public testimony.
REP. BUNDE asked the committee to address the concerns
expressed in the form of written testimony from Dane Clark
who suggested that there be an option to alternate Christmas
vacation every other year like Thanksgiving.
(See Attachment 1.)
REP. BUNDE indicated that the testimony pertains to the
holiday visitation schedule within the bill. He asked the
committee to respond to the proposal made by Mr. Clark.
MS. LAUTERBACH said if the change being requested was the
request of the committee, it would not be a difficult
amendment to draft.
Number 376
REP. G. DAVIS requested the committee to consider the
option.
MS. LAUTERBACH referred to prior testimony where witnesses
were suggesting that it would be cumbersome to split the
Christmas holiday up at 9:00 a.m. Christmas day. She said
the intent of the provision is to give one parent Christmas
Eve and the other parent Christmas Day. She noted that
there is usually two weeks off for children in school and
that is why Christmas is treated differently from the
Thanksgiving holiday. She said the change would be in the
realm of reasonable policy to alternate Christmas vacation
in the year that a parent does not have Thanksgiving.
Number 411
REP. OLBERG asked if there was enough flexibility in the
legislation to include both options.
CHAIR TOOHEY referred to Section B, page 3, line 20, and
asked how flexible the court can be in that area. She
speculated as to whether a parent would have to get
permission to be two hours late. She asked if rigid time
frames were built into the bill.
MS. LAUTERBACH said she did not think subsection B addresses
Chair Toohey's question. She said Section B addresses the
flexibility of the original visitation schedule. She
indicated that Chair Toohey's question pertains to the crime
of custodial interference and whether being late two hours
would be considered sufficient interference to amount to the
crime.
CHAIR TOOHEY asked which section of the bill would address
the question.
MS. LAUTERBACH said Section 1.
Number 455
REP. BUNDE explained that the substance of the question
falls under the purview of the courts. If a person is two
hours late only one time and the other parent tries to press
charges, no prosecutor would prosecute. He asserted that if
a parent is purposely being manipulative by being
chronically late and is causing economical and emotional
hardship, then a prosecutor would address the problem
accordingly. He said there would still be discretion with
the court.
MS. LAUTERBACH referred to Section 1, paragraph 2, and
indicated that there are three ways to show an intentional
interference with visitation rights. She said the key
phrase in subsection A is, "...takes, entices, or keeps the
child with the intent of denying access to the child..."
She maintained that if a parent is two hours late and had no
intention to deny access, the conditions of subsection A
would not be met. She stated that under subsection B, the
parent must have already been found in contempt of court on
a previous occasion to satisfy the conditions. She further
indicated that subsection C requires a pattern of
intentional violation of court orders to allow visitation.
She referred to Chair Toohey's question about being two
hours late and said it would depend on whether it was
intentional denial of access.
Number 502
CHAIR TOOHEY asked how a visitation schedule would be
changed if a noncustodial parent experiences a shift change
in hours at a job and needs to modify the schedule
accordingly. She asked how long it would take for the case
to be heard in court.
MS. LAUTERBACH said she was unsure of how long it would
take. She explained that when there is parental agreement
it could be fairly expedient, but if there is no parental
agreement, it could take years.
REP. BUNDE maintained that reasonable people work the
schedule out and don't go to court. But, if there is a
parent who is adamant that there won't be any change, the
case will end up in court.
MS. LAUTERBACH speculated that there are many visitation
orders in the state that are not being followed to the
letter because the parents have reached another agreement.
REP. BUNDE said the provision addresses those parents who
cannot agree on the visitation schedule.
Number 540
CHAIR TOOHEY asked, if the schedule is not upheld by either,
will the court take action?
REP. BUNDE explained that there must be a complainant.
CHAIR TOOHEY then asked where the parents would go.
REP. BUNDE replied that they must go to court.
CHAIR TOOHEY asked if a charge must be filed in court.
MS. LAUTERBACH responded that they could go to the district
attorney.
Number 563
REP. BUNDE directed the committee back to the concern of
Christmas and if it should be alternated and asked for
discussion.
REP. VEZEY said he did not have a strong preference but
indicated that because of the nature of today's society and
the distances involved for those who must travel, that
perhaps the option of every other Christmas would be more
convenient.
REP. BUNDE said he would like to include permissive language
within the bill that would offer the alternation of the
Christmas holiday as an option. He asked Ms. Lauterbach how
the change would be drafted.
MS. LAUTERBACH explained that she would need a little more
clarification and asked if the provision would be at the
option of the parents or would it be something the court
would designate after hearing travel circumstances.
REP. BUNDE said he was unsure if it could be made completely
the option of the parents. He asked that it be included as
an option the courts could offer to the parents.
Number 635
REP. OLBERG indicated that the existing provision states
that "...the court shall award the visiting parent at least
the following... So, I would like to retract my previous use
of the word flexibility, because that's fairly straight
forward." He then indicated that the provision is on page
3, line 9.
REP. BUNDE said, "...then we go down to B, where the court
shall award... But, there is some flexibility in light of
the child's best interest."
REP. OLBERG suggested that the provision specifies that the
court shall award some sort of equitable visitation rights.
REP. BUNDE said he would like the courts to have some type
of guidelines whether they want them or not.
REP. OLBERG said that every other Christmas should be
included as an option.
REP. G. DAVIS suggested that the Christmas option could be
added as a 5 after 4, that indicates the option of every
other year.
Number 676
REP. BUNDE said he preferred the language "may" offer rather
than "shall." He asked if that would be confusing language.
He asked Ms. Lauterbach to suggest appropriate language.
REP. VEZEY said it was not his intention to advocate that a
multiple choice statute be created. He said that reasonable
people can work out many complicated problems. He said a
choice needed to be made as to which is a better structure.
He asserted that the suggested amendment would be more
workable for a greater percentage of time than that of the
original proposal.
REP. BUNDE agreed, but said he did not want to preclude the
original option for those parents who live three blocks
away. He felt they should have the option of splitting
Christmas Eve and Christmas Day.
MS. LAUTERBACH said that the language she wants to propose
is based on what the committee expressed as a concern that
the courts consider travel distances over the Christmas
holiday. She suggested adding to subsection B "...if the
distance between parents makes the Christmas schedule under
3 and 4 impracticable, if the court finds it is
impracticable because of distance, the court shall award
alternating Christmases."
CHAIR TOOHEY indicated that Mr. Kenneth Kirk was still on
line via teleconference and wished to comment on the
discussion. She asked for further discussion from the
committee first.
REP. KOTT referred to page 3, line 10, and said that he is
concerned that it provides for at least the minimum
visitation rights and he felt that the courts would have
much discretion to award Thanksgiving every other year. The
minimum is every other year. He said the court can award it
every year. He asked for comment.
Number 801
MS. LAUTERBACH said Rep. Kott's point was well taken. She
said the words "at least" no longer makes sense as the
detailed schedule that was in the original bill is no longer
there. She recommended deleting "at least" from page 3,
line 10.
REP. BUNDE read the sentence without the words "at least."
He said he considered the change a technical amendment.
CHAIR TOOHEY asked Ms. Lauterbach to address the issue of
domestic violence.
MS. LAUTERBACH stated that subsection B addresses the issue
as far as the minimum visitation is concerned. If a
situation is detrimental to the child because of abuse by
the visiting parent or by whoever the visiting parent might
live with, and there is evidence on the record to support
that, the court can vary the schedule. However, she said
section B does not relate to testimony regarding relocation,
page 3, lines 1-6. She explained that the way the provision
is now written, a parent must give notice if they are going
to temporarily relocate to a "battered persons" shelter.
She considered it to be a flaw within the bill.
REP. BUNDE said he could not imagine a prosecutor choosing
to prosecute in that type of circumstance. He asserted that
there would be judicial application of the statute. He then
said he would be amenable to changing the provision to allow
for emergency circumstances. He then questioned what
constitutes an emergency and explained that some people
might consider a toothache an emergency and fly to Wisconsin
to see their favorite dentist.
Number 862
CHAIR TOOHEY asked Rep. Bunde to change the language to
include provisions for abusive emergency situations.
MS. LAUTERBACH explained that it would not be a difficult
task to include a special exception for relocation to a
shelter that is within the domestic violence counselling
system within the provision. She said that she would have
to refer to statutes to see how the shelters are referred to
before suggesting specific language.
Number 879
REP. VEZEY referred to the issue of grandparents as
mentioned in the written testimony of Mr. Clark. He
indicated that he did not want to further "muddy the water"
but asked if the committee could address the issue.
REP. BUNDE asserted that addressing the issue would be
muddying the water and said the bill addresses custodial
rights of biological parents. He viewed the issue as beyond
the scope of the legislation. However, he did acknowledge
the issue as a problem.
CHAIR TOOHEY agreed that the proposed legislation may not be
an appropriate vehicle for the issue and indicated that she
knew of several people who are being denied visitation to
their biological grandchildren.
REP. OLBERG suggested that the issue be addressed at another
time.
Number 917
MR. KIRK said he suggested splitting Christmas because it
was his understanding that most parents prefer the split as
it is lonely enduring the entire vacation without the child.
He stated that he knows of parents who do extensive
travelling during the Christmas vacation and felt that
alternating Christmas would be appropriate in those
circumstances. He further stated that he could not conceive
of a judge who would allow the prosecution of a parent who
relocated to a domestic violence shelter. He also indicated
that nothing in the proposal prevents the court from
awarding additional time for visitation with grandparents.
Number 974
REP. BUNDE said it was his preference to hear the bill again
on Tuesday, March 15, 1994 with input from Ms. Lauterbach
and perhaps testimony from law enforcement.
REP. B. DAVIS stated that she has problems with minimum
visitation. She felt the guidelines did not need to be put
in statute. She indicated that there are times when the
child decides that they do not want to visit that parent.
She asked if the child should be forced to visit and if it
was in the best interest of the child. She felt that the CS
was better than the original bill but said a lot of work
still needed to be done to make the legislation more
flexible. She explained that there are some parents who are
so vindictive that they will do anything in their power to
make sure that the law is carried out to the letter without
any concern to the best interests of the child. She said
the issue needed to be discussed, but did they need to be in
such specific terms within the bill.
REP. BUNDE said that there are people who will not allow
access to the child for the other parent.
REP. B. DAVIS said that something needs to be done about
those people who won't allow access because the majority of
parents will allow access.
Number 050
REP. OLBERG explained that he views the legislation as a
noncustodial parent's bill that addresses the problems of
noncustodial parents.
REP. BUNDE asked that the proposal be tabled until Tuesday,
March 15.
CHAIR TOOHEY asked Rep. Bunde to address the issue of a
child who does not want visitation with the visiting parent.
MS. LAUTERBACH stated that the court is supposed to consider
the issue and that the wishes of twelve year olds and older
are very determinative of what the court will order.
Although, she said, there is a minimum within the proposal
that would give the courts less flexibility. She also said
that younger children sometimes will say no to everything
and indicated that there is existing statute that relate to
the issue that say a child's unwillingness to go is not
considered just excuse for denying visitation.
Number 090
REP. BUNDE reiterated that he would like someone from law
enforcement to address the aforementioned issues.
REP. VEZEY stated that he has a problem with the penalty
clause. He felt that if parents are put in jail for a year,
they would not be very good parents. He said the issue is
custody and the concept of threatening jail sentences is a
luxury the state cannot afford.
Seeing no further discussion before the committee CHAIR
TOOHEY ADJOURNED the meeting at 4:53 p.m.
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