Legislature(1995 - 1996)

10/20/1995 09:00 AM Senate HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
    SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE                     
                        October 20, 1995                                       
                           9:00 a.m.                                           
                         Anchorage, AK                                         
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
 Senator Lyda Green, Chairman                                                  
 Senator Loren Leman, Vice-Chairman                                            
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
 Senator Mike Miller                                                           
 Senator Johnny Ellis                                                          
 Senator Judy Salo                                                             
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
 SENATE BILL NO. 156                                                           
 "An Act requiring mandatory mediation of child custody disputes               
 except in extraordinary circumstances; relating to modification of            
 child custody or visitation rights; amending Alaska Rule of Civil             
 Procedure 100; and providing for an effective date."                          
                                                                               
  PREVIOUS SENATE COMMITTEE ACTION                                             
                                                                               
 SB 156 - See Health, Education & Social Services minutes dated                
          9/21/95.                                                             
                                                                               
  WITNESS REGISTER                                                             
                                                                               
 Mike Tibbles, Staff to Senator Green                                          
 165 E. Parks Highway, Suite 106                                               
 Wasilla, AK 99654-7035                                                        
  POSITION STATEMENT:   Presented overview on SB 156                           
                                                                               
 Chris Christensen, General Counsel                                            
 Alaska Court System                                                           
 303 K St.                                                                     
 Anchorage, AK 99501-2084                                                      
  POSITION STATEMENT:   Alaska Court System neutral on SB 156                  
                                                                               
 Diana Buffington, Vice President                                              
 Children's Rights Council of Alaska                                           
 733 W. 4th Ave.                                                               
 Anchorage, AK 99501                                                           
  POSITION STATEMENT:   SB 156 has too many flaws                              
                                                                               
 Mary Ann Dearborn                                                             
 Dearborn Family Mediation                                                     
 308 G St., #202                                                               
                                                                               
 Anchorage, AK 99501                                                           
  POSITION STATEMENT:   Urged work be done on the bill to correct              
                      issues she identified                                    
                                                                               
 Patricia Neal                                                                 
 P.O. Box 551                                                                  
 Wrangell, AK 99929                                                            
  POSITION STATEMENT:   Supports mandatory mediation                           
                                                                               
 Glenn Cravez                                                                  
 Law Office of Glen Cravez                                                     
 421 W. 1st Ave., Suite 250                                                    
 Anchorage, AK 99501                                                           
  POSITION STATEMENT:   Supports mandatory mediation, but has concerns         
      with provisions in SB 156                                                
                                                                               
 Vance Strong                                                                  
 905 Richardson Vista Road, #335                                               
 Anchorage, AK 99501                                                           
  POSITION STATEMENT:   Supports SB 156, but it has facets that                
                      should be strengthened                                   
                                                                               
 Pam Sandvik, Executive Director                                               
 Valley Women's Resource Center                                                
 P.O. Box 878464                                                               
 Wasilla, AK 999687                                                            
  POSITION STATEMENT:   SB 156 does not provide protection for victims         
                      of domestic violence                                     
                                                                               
                                                                               
 Gary Maxwell                                                                  
 733 W. 4th Ave, #306                                                          
 Anchorage, AK 99501                                                           
  POSITION STATEMENT:   Has concerns with SB 156                               
                                                                               
 Bill Cotten, Executive Director                                               
 Alaska Judicial Council                                                       
 1029 W. 3rd Ave., Suite 201                                                   
 Anchorage, AK 99501                                                           
  POSITION STATEMENT:   Agrees with mandating people into mediation to         
      start with, but the make it voluntary to                                 
                      continue                                                 
                                                                               
 Bob Shumaker                                                                  
 P.O. Box 4290                                                                 
 Palmer, AK 99645                                                              
  POSITION STATEMENT:   Supports SB 156                                        
                                                                               
 Stephanie Loris                                                               
 Juneau, AK                                                                    
  POSITION STATEMENT:   SB 156 does not provide safety to victims of           
      domestic violence                                                        
 Lauree Hugonin, Executive Director                                            
 Alaska Network on Domestic Violence & Sexual Assault                          
 130 Seward St., #501                                                          
 Juneau, AK 99801                                                              
  POSITION STATEMENT:   Domestic violence cases should be excluded             
      from mandatory mediation                                                 
                                                                               
 Susan Williams                                                                
 Box 151                                                                       
 Anchor Point, AK 99556                                                        
  POSITION STATEMENT:   There should be more joint shared custody of           
      children                                                                 
                                                                               
                                                                               
 Carol Palmer                                                                  
 P.O. Box 2402                                                                 
 Palmer, AK 99645                                                              
  POSITION STATEMENT:   Supports mandatory mediation                           
                                                                               
 Dave Hansen                                                                   
 2600 Denali St., #301                                                         
 Anchorage, AK 99503                                                           
  POSITION STATEMENT:   Supports mediation, but has concerns with              
      SB 156                                                                   
                                                                               
 Drew Peterson                                                                 
 4325 Laurel St., Suite 2335                                                   
 Anchorage, AK 99508                                                           
  POSITION STATEMENT:   Supports mandatory mediation, but has concerns         
          with SB 156                                                          
                                                                               
 Jerry Brewer                                                                  
 1021 W. 25th                                                                  
 Anchorage, AK 99503                                                           
  POSITION STATEMENT:   Mediation not answer to problems, but better           
                      than current system                                      
                                                                               
 Kathy Haywood                                                                 
 2221 Muldoon, #561                                                            
 Anchorage, AK 99504                                                           
  POSITION STATEMENT:   Changes need to be made to system                      
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
  TAPE 95-38, SIDE A                                                           
 Number 001                                                                    
        SB 156 MANDATORY MEDIATION:CHILD CUSTODY ISSUES                       
                                                                              
 CHAIRMAN GREEN called the Senate Health, Education and Social                 
 Services (HESS) Committee to order in the Anchorage LIO conference            
 room at 9:00 a.m.  Due to the lack of a quorum, she stated that the           
 meeting would be considered a work session, and the only action               
 that would be taken on SB 156 would be the taking of public                   
 testimony for the record.                                                     
                                                                               
 Number 025                                                                    
                                                                               
 MIKE TIBBLES, staff to Chairman Green, explained that SB 156 was              
 introduced by the Chair at the request of a group of concerned                
 Alaskans who feel the practice of resolving divorce disputes in the           
 courts can often be confrontational and filled with accusations.              
 He said this current system can have many negative impacts on all             
 parties, including the high costs associated with litigation, the             
 length associated with litigation and, most importantly, decisions            
 may be made which may not necessarily be in the best interest of              
 the children.  SB 156 was introduced to address these issues.                 
                                                                               
 Mr. Tibbles then presented a brief overview on provisions contained           
 in SB 156.                                                                    
                                                                               
 Number 070                                                                    
                                                                               
 CHRIS CHRISTENSEN, General Counsel, Alaska Court System, stated the           
 Supreme Court takes no position on SB 156.  They believe mediation            
 is generally a good idea, however, they have several concerns with            
 the legislation.                                                              
                                                                               
 The court system's first concern is with costs, and they are still            
 trying to handle on what this might actually cost the state as                
 opposed to what it might cost the parties.  They believe that the             
 cost will be substantial.  He pointed out that every year, in the             
 City of Anchorage alone, there are several thousand child custody             
 disputes and that number would have to doubled statewide.  Some               
 percentage of these people are going to be indigent and the costs             
 of anywhere from one to three mediators is going to be born by the            
 state under those circumstances.                                              
                                                                               
 The second concern is that the drafter of the bill has confused, to           
 some extent, mediation with arbitration.  The legislation provides            
 that a panel of up to three persons is allowed, and this is                   
 something that is most often found in an arbitrator setting as                
 opposed to a mediator setting.  Also, the bill contains language              
 which says that the mediators are allowed to determine if someone             
 didn't negotiate in good faith and cause the efforts to fail and              
 then pass this information along to the court.  Mr. Christensen has           
 talked with several mediators, and they believe that requiring the            
 mediators to make this evaluation and this kind of a judgment goes            
 against the purpose of mediation.                                             
                                                                               
 The third is with the proposed change to the current court rule,              
 Civil Rule 100, which allows a judge not to use mediation when                
 there has been domestic violence in a relationship, and it                    
 absolutely prohibits him or her from using mediation when there is            
 a domestic violence restraining order in effect.  Mr. Christensen             
 pointed out that under SB 156 there is no language referring to               
 domestic violence, although it does says that a judge doesn't have            
 to order mediation if there are extraordinary circumstances, but              
 there is no definition of "extraordinary circumstance."  Also, it             
 is not entirely clear from the legislation which takes precedence             
 if there is a domestic violence restraining order in effect and a             
 no contact order in effect.                                                   
                                                                               
 Number 115                                                                    
                                                                               
 SENATOR GREEN asked Mr. Christensen if he sees anything that would            
 prohibit the language being improved to take care of the concerns             
 he had outlined.  MR. CHRISTENSEN responded that he thinks it would           
 be a relatively easy matter to resolve and that it would not                  
 destroy the bill.                                                             
                                                                               
 Number 125                                                                    
                                                                               
 DIANA BUFFINGTON, Vice President, Children's Rights Council of                
 Alaska (CRCA),  stated as a local chapter of the national                     
 organization, they are committed to strengthening families through            
 public education and advocacy.  Family formation and preservation             
 is ultimately favored, however, in the event of a breakup or a                
 family is never formed, they support the child's right to frequent,           
 continued and meaningful contact with both parents and their                  
 extended families.                                                            
                                                                               
 Ms. Buffington suggested mandatory mediation should not replace our           
 courts; mediation should be the tool of a court.  CRCA supports               
 mandatory mediation if it ensures issues regarding the balance of             
 power among parties be resolved.  They support mandatory mediation            
 if it removes the present absurdities and inequalities in the                 
 divorce process.  They support mandatory mediation if it doesn't              
 drive or force away the nonresidential parent.                                
                                                                               
 Ms. Buffington said in the current Alaska divorce, custody                    
 visitation and the child support process, a very adversarial                  
 climate has been developed that perpetuates conflict between the              
 parents.  The system pits one parent against the other, and the               
 fact that two people can't get along, for whatever reasons, and are           
 divorcing or separating, should not result in the children losing             
 a parent.                                                                     
                                                                               
 Ms. Buffington believes that SB 156, as it is currently written,              
 also perpetuates this withdrawal process.  Sole custody or                    
 mandatory mediation that results in sole custody is inherently                
 unfair to the children.  The proper way to fix the problem is not             
 through more draconian enforcement procedures as set forth in SB
 156.  The mediation part of the proposal is not the problem with SB
 156.  Research shows that if a policy of presumption for joint                
 legal custody is adopted, there will be better child support                  
 payments, children will have more contact with their fathers, and             
 there will not be more conflict, there will be more communication.            
 Most important the children will be better adjusted.                          
                                                                               
 Ms. Buffington said we need a law that tells mediators and judges             
 to make a rebuttal presumption that shared parenting is in the best           
 interest of the child.  The current law allows judges to award                
 shared parenting or shared custody, but it does not presume that              
 such an agreement and arrangement is in the best interest of the              
 child.  The current draconian enforcement procedures are the                  
 evidence that the enforcement bureaucracy, about a $2 billion                 
 enterprise, has had fantastically little success.  Most                       
 importantly, establishing a presumption for shared parenting as the           
 rebuttal judicial presumption in divorce cases or modification of             
 custody and visitation should go a long way to solving most of                
 these problems.                                                               
                                                                               
 Ms. Buffington stated the Children's Rights Council of Alaska                 
 requests a halt on all family law legislation including:  divorce,            
 custody and visitation, child support laws, and changes in                    
 administrative codes and agency policies and procedures affecting             
 the Alaska Superior Courts and CSED.  She suggested the "Child                
 Support Guidelines, The Next Generation" is a blueprint for which             
 to formulate new Alaska statutes and replacement of many of the               
 current passe and unfavorable laws, and many states have and are in           
 the process of passing CRC guidelines.  Many of the amendments that           
 are sorely needed and encouraged for SB 156 were included in a law            
 that took effect in Texas in September 1995.                                  
                                                                               
 Ms. Buffington said that if it is the committee's desire to pass              
 this legislation, she would suggest amending it in the following              
 ways:                                                                         
                                                                               
 1)  All mediation procedures should presume shared parenting.                 
 require each parent to inform the other parent of significant                 
 information concerning the health, education and welfare of the               
 child.                                                                        
                                                                               
 2)  Develop a good faith definition clause with well-defined                  
 guidelines for the mediators.                                                 
                                                                               
 3)  Change the wording "in the best interests of the child" to "a             
 positive improvement for the child."                                          
                                                                               
 4)  A mediator or a court should honor the parents' wishes in                 
 custody and visitation because parents know their children best.              
 Parents should be required make an attempt to solve custody and               
 visitation disputes through mediation.                                        
                                                                               
 5)  Allow parents to agree to binding arbitration.  In the event a            
 mediation solution is not reached, the case goes to court without             
 reprisals or disfavorable reports by the mediators.                           
 6)  The custody or the rights of a parent should not be taken away            
 because he or she is not acting in a broadly or a well-defined term           
 as "good faith."  As currently written, even a well-defined good              
 faith is still a term that will be open to broad interpretation               
 even by the most objective of mediators.                                      
                                                                               
 7)  Allow separate mediation for parents and families who have                
 suffered domestic violence.  Amend the bill to read "Domestic                 
 violence against either parent or child should be a factor in any             
 custody or visitation determination."                                         
                                                                               
 8)  Allow custodial and noncustodial parents as mediators or                  
 included in the mediation process.                                            
                                                                               
 9)  Make is easier to shift sole custody of a child of any age to             
 the other parent by showing the change would be a positive                    
 improvement for the child, thus eliminating the need to show injury           
 to the child in the previous household.                                       
                                                                               
 10)  Give noncustodial parents more rights including makeup of                
 visitation.                                                                   
                                                                               
 11)  Allow children, age 12 and up, to be part of the mediation               
 process.                                                                      
                                                                               
 12)  Strengthen the law that encourages false abuse allegations.              
                                                                               
 In closing, Ms. Buffington said that although mediation is a good             
 idea, SB 156 has far too many flaws in it to make a just law and a            
 positive improvement for the children of Alaska.                              
                                                                               
 Number 268                                                                    
                                                                               
 SENATOR GREEN asked if when states other passed children's rights             
 legislation, was that sort of a omnibus total rewrite of the law.             
 MS. BUFFINGTON acknowledged that it was.  It was an encompass of              
 the divorce, child custody and visitation and child support laws.             
                                                                               
 SENATOR GREEN commented that in some ways, the points that Ms.                
 Buffington raised sound like a whole additional piece of                      
 legislation, and she asked if there was something in SB 156 that              
 could be changed or improved to handle only the mediation process.            
 MS. BUFFINGTON retierated the suggestion to hold off on some of               
 this legislation until looking over the "Child Support Guidelines,            
 The Next Generation" because it addresses some of these issues.               
 She also noted her group would be drafting some proposed                      
 legislation.                                                                  
                                                                               
 Number 365                                                                    
                                                                               
 MARY ANN DEARBORN, owner of Dearborn Family Mediation in Anchorage,           
 stated she holds practitioner status among the international                  
 membership of the Academy of Family Mediators, as well as she                 
 teaches family and divorce mediation for the University of Alaska,            
 Anchorage.                                                                    
                                                                               
 Ms. Dearborn stated she supports mandatory exposure to the                    
 mediation process in all appropriate cases involving child custody            
 and visitation.  However, mediation is a voluntary confidential               
 process based on self determination.  She said mandatory exposure             
 to the process, which she refers to as orientation, frequently                
 influences to proceed and willingly participate, but she added that           
 you really can't make somebody mediate, they have to want to                  
 mediate.                                                                      
                                                                               
 Ms. Dearborn also supports equal access to a mandatory exposure to            
 the mediation process in all appropriate cases involving child                
 custody and visitation.  Equal access should be provided to all who           
 fall within the population of any legislation which is mandatory.             
 Mediation fees should be covered by the state in all cases in which           
 parties are determined to be indigent.  She noted this is a part of           
 SB 156, but she questioned how these costs will be covered and if             
 there will be companion legislation developed.                                
                                                                               
 Ms. Dearborn said she supports nonexclusive language for those who            
 would serve as mediators under SB 156.  She referred to language in           
 Section 1, which she said has a tendency to set up exclusive as it            
 relates to people who would be performing mediation in these types            
 of cases.  She suggested family mediators who have met the                    
 professional standards, such as those that are set by the Academy             
 of Family Mediators and have had appropriate training, including              
 specific training in family and domestic violence mediation, should           
 be included regardless of professional background.  She believes              
 the legislature should be turning to professional organizations who           
 have already set standards, as well as to those areas of training             
 that might be important through the court system's determination              
 when they set up the court directory of mediators.                            
                                                                               
 Ms. Dearborn also believes it is particularly important that                  
 mediators be educated and trained in family mediation and a                   
 domestic violence component.  She suggested that anybody who is               
 doing family mediation can anticipate that the people that they are           
 working with have had either some component of violence in the past           
 or are ripe for some act of violence because it is a highly                   
 emotional issue that is being brought before the family mediator.             
                                                                               
 Ms. Dearborn said she supports nonpunitive actions by mediators.              
 Mediators are to be impartial, neutral third parties who do not               
 create bias within a relationship.  A mediator's "report," as                 
 created in SB 156, creates a bias and a punitive result which is              
 unethical from a mediator's standpoint.  SB 156 and its requirement           
 for a report which effectively would remove custody from one party            
 and reward it to the other is a violation of professional mediation           
 ethics, she stated.                                                           
 In closing, Ms. Dearborn thanked the committee for its efforts and            
 urged that work be done on the bill to correct the issues she had             
 identified.                                                                   
                                                                               
 Number 530                                                                    
                                                                               
 SENATOR GREEN asked Ms. Dearborn if she was aware of any                      
 legislation in place in other states that she would consider the              
 ideal system.  MS. DEARBORN responded that she has not researched             
 that particular point, but she suggested that the Academy of Family           
 Mediators might have that information.  She added that she does not           
 see a great deal wrong with the current statutes, nor does she feel           
 that Civil Rule 100 is terribly defective, but she suggested that             
 if mandatory exposure to the mediation process if provided, to                
 amend it so that people must attend an orientation session.                   
                                                                               
 Number 627                                                                    
                                                                               
 SENATOR LEMAN, addressing the issue of mediation fees, asked Ms.              
 Dearborn if the state now pays for any of her services directly to            
 those who cannot afford to pay.  MS. DEARBORN replied that the only           
 state payments that are made to her are through the Legal Trust               
 Fund, which now covers 80 percent of a mediator's fees if the                 
 individual has been referred to the mediator by the attorney.                 
 However, she pointed out that is for people who are working, it is            
 an earned benefit.  She also pointed out that she lowers her fee              
 for people who have been ordered to her and cannot afford to pay              
 her usual fee.                                                                
                                                                               
  TAPE 95-38, SIDE B                                                           
                                                                               
 Number 050                                                                    
                                                                               
 PATRICIA NEAL of Wrangell said she believes that there are child              
 custody cases that are perfect examples of what is wrong with the             
 judicial system in this state and why legislation is necessary to             
 correct these deficiencies.                                                   
                                                                               
 Ms. Neal outlined the circumstances surrounding her husband's                 
 attempt since 1992 to gain custody from his ex-wife of his daughter           
 who is now 12 years old and who suffers because of the bias and               
 inequitable manner in which this case has been decided by the                 
 court.                                                                        
                                                                               
 Number 180                                                                    
                                                                               
 SENATOR GREEN asked Ms. Neal if at some point in her experience,              
 the mediation process could have been put into place.  MS. NEAL               
 answered that she really doesn't know, but she would like to think            
 that if they could sit down and discuss things and reach some kind            
 of agreement with the ex-wife that it would work.                             
                                                                               
 Number 200                                                                    
                                                                               
 GLENN CRAVEZ, an attorney who has been practicing law in Anchorage            
 since 1981, said he has chaired the Alaska Bar Association's                  
 section on alternative dispute resolution since its creation                  
 approximately six years ago.  Mediation, including child custody              
 mediation, has become an important part of his practice, but the              
 views he was expressing were his own.                                         
                                                                               
 Mr. Cravez said he is a strong proponent of mediation for child               
 custody disputes because the cost of  litigating these disputes can           
 be prohibitive, and that he endorses the bill's goal of resolving             
 more child custody disputes through mediation, but he does have               
 concern with some of the bill' provisions.                                    
                                                                               
 He said mediation may not be appropriate in cases of recent and/or            
 recurring domestic violence.  Mediators with specialized training             
 in domestic violence issues should be utilized to screen these                
 cases to determine whether mediation is appropriate.  He does not             
 believe that "extraordinary cause" language in Section 1 of the               
 bill is specific enough to address the domestic violence portion of           
 the bill.  Also, the bill doesn't provide a mechanism for screening           
 or evaluating cases before ordering mediation to deal with the                
 domestic violence issue.                                                      
                                                                               
 Section 1(b), as currently written, requires a court to approve any           
 mediated settlement of child custody dispute, unless it find by               
 "clear and convincing evidence" that the settlement is not in a               
 child's best interest.  He believes the intent is to minimize                 
 judicial second guessing of parenting decisions made by parents in            
 mediation, and, while he agrees with that goal, he disagrees with             
 the language.  He said clear and convincing evidence is a very high           
 burden of proof, and to ensure that a mediated agreement is in the            
 best interest of the child while at the same time granting due                
 judicial deference to the decisions of parents reached in                     
 mediation, he would suggest deleting the phrase "clear and                    
 convincing evidence" from that paragraph.                                     
                                                                               
 Referring to Section 1(c), Mr. Cravez said most of that paragraph             
 is contrary to the inherent nature of the mediation process.  By              
 definition, mediation is confidential, and that confidentiality and           
 the very effectiveness of mediation is destroyed by requiring the             
 mediator to make a report to the court.  Mediating is inherently              
 inconsistent with reporting or investigating.  He also questioned             
 the paragraph's last sentence from a standpoint of public policy.             
 He said custody awards should be based on what is in the best                 
 interest of the child and not be subjected to a clear and                     
 convincing evidence test.                                                     
                                                                               
 Section 1(e) provides that the cost of mediation is to born by the            
 state if the parties are indigent.  He suggested the question of              
 how much this will cost the state and how eligibility will be                 
 determined should be considered.                                              
                                                                               
 Summarizing, Mr. Cravez said he favors greater use of mediation to            
 resolve disputes in the state, and, specifically, he favors greater           
 use of mediation to resolve child custody and visitation disputes.            
 He added that if SB 156 moves forward in the legislative process,             
 he hopes his comments will be considered so that the legislation,             
 in its final form, accomplishes what its proponents seek, which is            
 more parental resolution of parenting disputes and less judicial              
 resolution of the same.                                                       
                                                                               
 Number 330                                                                    
                                                                               
 SENATOR LEMAN asked if in his suggestion to remove the words "clear           
 and convincing evidence" he was proposing that the standard not be            
 addressed.  MR. CRAVEZ replied that if the words "clear and                   
 convincing evidence" are deleted, the standard, by default, becomes           
 preponderance of the evidence.  There is still a burden of proof              
 there, so a court would still be required to make a finding by                
 preponderance of the evidence.                                                
                                                                               
 Number 345                                                                    
                                                                               
 MR. CRAVEZ informed the committee that 29 states have enacted                 
 statutes that deal with child custody mediation, but, as yet, there           
 is no consensus within the mediation community to what the "right             
 way" of doing this is.  He suggested the Academy of Family                    
 Mediators, as well as the Society of Professionals of Dispute                 
 Resolution would probably have some sort of compilation of statutes           
 that the committee might want to study.                                       
                                                                               
 Number 370                                                                    
                                                                               
 VANCE STRONG of Anchorage, speaking from personal experience from             
 a dad's standpoint, stated he supports SB 156, but there are facets           
 of it that he believes should be strengthened.  He distributed                
 pictures of his two young daughters, who, he said, were the reasons           
 he was appearing before the committee, and who both have suffered             
 hearing problems because of some poor decisions that were made.               
                                                                               
 Mr. Strong related that after not being able to resolve differences           
 with his wife, he went to Mr. Cravez who contacted her and                    
 suggested mediation to resolve their differences, but she refused             
 the mediation process.  He believes that if there had been                    
 mediation at the beginning, he would not have had to enter into the           
 system and lose four years of time.                                           
                                                                               
 He said in going to the courts, you get into what some call the               
 "butcher mentality" - dad is automatically going to take the second           
 seat, mom is going to take the first seat.  That is basically what            
 happened; he ended up with 16 percent visitation time and no higher           
 than that on paper.  Physically, he received only 8 percent                   
 visitation time with his children.  He noted that at no time, after           
 18 motions in the court, did the courts ever do anything.  He said            
 the most important thing is that the children have been stripped              
 from dad.                                                                     
                                                                               
 Number 480                                                                    
                                                                               
 SENATOR GREEN asked Mr. Strong if mediation would have assisted               
 him.  MR. STRONG responded that mediation would have been a                   
 tremendous force in the entire process.  SENATOR GREEN commented              
 that some of what he was talking about is not only a child custody            
 dispute between him and his wife, but a problem with the courts,              
 the system and the way things are handled.                                    
                                                                               
 Number 540                                                                    
                                                                               
 SENATOR GREEN announced the committee would take a five-minute                
 recess.  After coming back to order, she requested that the                   
 remaining witnesses adhere to a three-minute time limit on their              
 testimony.                                                                    
                                                                               
 Number 565                                                                    
                                                                               
 PAM SANDVIK, Executive Director, Valley Women's Resource Center,              
 testifying from the Mat-Su LIO, stated she thinks the underlying              
 reasoning behind the bill is sound in some ways, but it does not              
 provide protection for domestic violence victims.                             
                                                                               
 Ms. Sandvik said for mediation to be effective and to be fair, both           
 parties have to have an equal power base, and, in the cases of                
 domestic violence, that just isn't what's happening.  The abuser              
 has the power in those relationships, and during the mediation, the           
 abuser will assume control of the process.                                    
                                                                               
 Ms. Sandvik said another concern is that if one party is unwilling            
 to mediate in good faith, or maybe not mediate at all, or even show           
 up, it may be because of their fear for their own safety.  The                
 current proposal automatically gives custody to the other party.              
                                                                               
 Another problem Ms. Sandvik addressed is that the legislation                 
 doesn't designate which law takes precedence: whether it is a                 
 restraining order or whether it is SB 156.  She said if it is SB
 156, then it is directly violating restraining or protective                  
 orders.  She suggested that exempted wording be added to the bill             
 that extraordinary cause or circumstances shall be deemed present             
 on a party to the proposed mandatory mediation is a past or current           
 victim of domestic violence, or a restraining or protective order             
 is in place.  She pointed out that 13 states have these laws in               
 place exempting domestic violence victims from mediation.                     
                                                                               
 Number 645                                                                    
                                                                               
 GARY MAXWELL of Anchorage, echoed Mary Ann Dearborn's earlier                 
 testimony.  He thinks that mandatory exposure to the process would            
 be valid at a minimum of a four-hour time limit for mediation so              
 that a professional could determine whether they think mediation is           
 going to be successful or not.  However, he is concerned that SB
 156 will be adding another layer of bureaucracy to an already                 
 fairly dysfunctional system.                                                  
                                                                               
 Mr. Maxwell, in addressing the cost issue for mediation, suggested            
 adding $20 to the filing fee that people already pay to the court             
 system, or to look to the court system for the savings.  He said              
 if people get into mediation, then they don't have to have a two or           
 three day custody trial and that could be a tremendous cost saving.           
                                                                               
 Mr. Maxwell has concerns with the good faith language, and he                 
 suggested it needs to deleted because it is unethical for mediators           
 to basically try to disclose any of the results of the process.               
                                                                               
 Mr. Maxwell would like to see legislation that proposes a                     
 presumption of joint shared custody because then there would not be           
 the mediation issue or the fight unless it is just absolutely not             
 in the children's best interest.                                              
                                                                               
  TAPE 95-39, SIDE A                                                           
                                                                               
 Number 001                                                                    
                                                                               
 BILL COTTEN, Executive Director, Alaska Judicial Council, said he             
 thinks it is important to recognize that these types of disputes              
 are different from the other disputes that are before courts and              
 that the courts were set up to handle.  If it is a contract                   
 dispute, the court decides it and the people go on with their                 
 lives.  But that cannot happen in this type of dispute; that child            
 is still there and is going to be a child for anywhere up to 18               
 years.  The parents, at least if they are going to benefit the                
 child, are going to have to work together in that period, and that            
 is why this mandated solution that the courts can give or that                
 arbitration can give is not an ideal process.  That's why a                   
 cooperative process of trying to get these people to work together            
 to come up with a solution not only focuses on the problem today,             
 but the problem two years down the road, the problem ten years down           
 to road is very important, and he agrees with mandating people                
 getting into mediation to start with, but then it is voluntary that           
 they continue it.                                                             
                                                                               
 Mr. Cotten said the bill's emphasis on mediation is very positive,            
 and he pointed out that the Judicial Council's study showed that              
 people, even victims of domestic violence, need and ask for an                
 ability to go before a mediator.                                              
                                                                               
 Number 035                                                                    
                                                                               
 SENATOR GREEN asked if there was currently a provision for                    
 mediation in a family court setting.  MR. COTTEN acknowledged that            
 Civil Rule 100 actually tries to encourage both the parties and the           
 judge to use mediation, but it is a completely voluntary process.             
 He added that it is very similar to the process being discussed in            
 the meeting, it is just that the first session isn't mandatory.               
                                                                               
 SENATOR GREEN asked if there was any rationale for so few                     
 recommendations for mediation coming from court.  MR. COTTEN                  
 answered that he thinks it has been happening more and more, but it           
 hasn't come nearly as far as needed, so that's why something that             
 mandates the orientation session would be the way to go.  SENATOR             
 GREEN agreed that may be the perfect way to go at the first level,            
 to mandate the introduction to mediation.                                     
                                                                               
 In his closing remarks, MR. COTTEN said that one separate provision           
 in the bill that changes the 30-day period that a pending child               
 custody proceeding shall be stayed to a 90-day period is an                   
 extremely worthwhile thing to do, even if nothing else is done in             
 the legislation, because the 30 days just isn't enough time in most           
 cases.                                                                        
                                                                               
 Number 060                                                                    
                                                                               
 BOB SHUMAKER, testifying from the Mat-Su LIO, stated his support              
 for SB 156.  He believes that mediation can be an effective tool,             
 even in domestic violence situations, in getting the parents to               
 come to some sort of resolution with a good mediator.                         
                                                                               
 Number 071                                                                    
                                                                               
 STEPHANIE LORIS, a counselor who works with women and children who            
 are in battering situations and testifying from Juneau, stated she            
 does not think that SB 156 provides for the safety of women and               
 children who are victims of domestic violence, and she suggested it           
 needs more work in terms of ensuring the safety for victims.  She             
 said being in the same room with their batterers in a mandatory               
 setting can be very intimidating for those women and even very life           
 threatening.                                                                  
                                                                               
 Number 090                                                                    
                                                                               
 LAURIE HUGONIN, Executive Director, Alaska Network on Domestic                
 Violence and Sexual Assault, testifying from Juneau, said she                 
 agrees with earlier testimony that domestic violence cases should             
 be excluded from mandatory mediation.  She pointed out that the               
 National Council of Juvenile and Family Court Judges opposes                  
 mandatory mediation in family violence cases, and that the American           
 Bar Association has concerns with mediation in these cases as well.           
 She said the Network urges exempting domestic violence from any and           
 all mandatory mediation requirements, and they suggest requiring              
 court mediators to be trained in the appropriate screening for                
 violence and in taking action to ensure victims are made aware of             
 their safety and legal options.                                               
                                                                               
 Number 140                                                                    
                                                                               
 SUSAN WILLIAMS, testifying from the Homer LIO, said she was                   
 speaking for the children.  She has watched the courts alienate the           
 child and the noncustodial parent.  Custodial parents are given all           
 the power and control and the noncustodial parent ends up being               
 removed from the life of the child, which results in more welfare.            
 If less welfare were paid to these mothers and there was more joint           
 shared custody, there would be money, and it is something that                
 should be considered.  Juvenile delinquency goes up when there                
 isn't joint shared custody and the court leaves the noncustodial              
 parent with very little access to their children, if any at times.            
 She stated children have the right to be with both parents.  She              
 also stated that domestic violence happens to children by one of              
 their parents just as much as it does by one spouse against the               
 other.  Concluding, she stressed the need to do something to remove           
 the judges so that they have to stand back and get someone else               
 into the mediation that can do some assistance toward helping our             
 children.                                                                     
                                                                               
 Number 175                                                                    
                                                                               
 SENATOR GREEN asked Ms. Williams how she feels about SB 156 and MS.           
 WILLIAMS responded that she believes that there is a desperate need           
 for mediation.                                                                
                                                                               
 Number 443                                                                    
                                                                               
 CAROL PALMER, Advisory President of Victims of Custody, stated that           
 due to her own personal experience, she believes that mandatory               
 mediation is needed.  When she and her husband divorced                       
 approximately 10 years ago she was given primary joint custody of             
 their son.  A little over four years ago  her ex-husband found a              
 way to sue for custody by false accusations.  These accusations               
 were never proved, but she lost anyway for apparently no reason.              
 Over three years ago her son said he wanted to live in Alaska with            
 his mother, but he has been denied having his say in court.  Her              
 goal is to have her son's wishes and desires known so that he can             
 live where he wants to live.  She believes that had mediation been            
 an option and having children 12 years and older participating in             
 the mediation, the issue could have been resolved a long time ago             
 and justice could have been served.                                           
                                                                               
 Number 240                                                                    
                                                                               
 DAVE HANSEN of Anchorage, a professional mediator, expressed his              
 strong support for encouraging the use of mediation in all areas.             
 However, he does have some concerns with SB 156.  One is with the             
 language at the bottom of page 1 relating to appointing up to three           
 mediators who have experience in law, child psychology, social                
 work, or other appropriate areas.  He suggested adding the language           
 "who have mediation training" after the words "three mediators," as           
 well as adding the word "family" before the words "law" and "social           
 work."                                                                        
                                                                               
 Mr. Hansen said he has not looked at all the ins and outs of the              
 pros and cons of jumping to mandatory mediation, and he is not an             
 expert in family mediation, but he suggested taking advantage of              
 the professional organizations here in the state to get their input           
 on the legislation.                                                           
                                                                               
 Number 300                                                                    
                                                                               
 DREW PETERSON of Anchorage, a mediator who practices primarily in             
 the area of family mediation, stated that he favors mandatory                 
 mediation, but one of the problems in this field that is really               
 definitional is that there are different people doing different               
 things they call mediation.  He said he believes that for mediation           
 to be done effectively in the family area there has to be three               
 things:  (1) it has be voluntary; (2) it has to be confidential;              
 and (3) it has to noncoersive.                                                
                                                                               
 Mr. Peterson believes the domestic violence issue has to be                   
 addressed.  He suggested there should be domestic violence training           
 for all mediators.  To deal with the mandatory aspects, he said               
 there is no reason why the mandatory portion of it even has to                
 involve the people in the same room.  He suggested providing                  
 language to say that if any domestic violence issue be raised, that           
 it be an automatic rule that the parties will not mediate together,           
 they will mediate separately.                                                 
                                                                               
 Mr. Peterson noted that Senator Green has commented before about              
 there being other mechanisms, and he believes that Civil Rule 100             
 is a very good mechanism.  He would prefer an approach which would            
 incorporate a mandatory element into using the Rule 100 procedure,            
 but with the domestic violence protections he made reference to.              
 He believes it would be a more workable bill than SB 156.                     
                                                                               
 Number 420                                                                    
                                                                               
 JERRY BREWER of Anchorage, stated he believes that a lot of                   
 problems that our young people experience in society is because               
 they come from broken homes and have only one parent raising them.            
 However, he does not think mediation is the answer to the problem,            
 although it is better than what now exists.  He suggested that when           
 people are falsely accused of violence against children or spouses,           
 there needs to be somebody that will be able to mediate and be able           
 to prove that it is untrue, at least to the extent that they are              
 being accused.                                                                
                                                                               
 Number 450                                                                    
 KATHY HAYWOOD of Anchorage, said that from her personal experience,           
 she knows that there definitely needs to be changes made.  Unlike             
 some other people who have testified that their children's voices             
 weren't heard, her child's was, but he was only 10 years old and              
 she thinks he was much too young to understand some of the                    
 implications of what was going on.  She said she doesn't have any             
 specific proposals, but she thinks some of the moral issues such as           
 drugs and alcohol really have to addressed carefully.  She pointed            
 out that when there are teenagers involved, they are going to want            
 to go towards the least restrictive environment and that may be an            
 unhealthy environment in a lot of ways.  The courts won't give her            
 custody of her own teenage son because he doesn't want to live with           
 her now, but he is living with his father who is currently under              
 indictment for a couple of very serious charges.                              
                                                                               
 Number 550                                                                    
                                                                               
 CAROL PALMER said the reason the Victims of Custody requested SB
 156 is because they have seen a consistent pattern of the other               
 parent, usually the custodial parent, being very controlling and              
 manipulative with the noncustodial parent and the children, and               
 because of problems with getting the controlling parent to agree to           
 mediation.                                                                    
                                                                               
 Number 585                                                                    
                                                                               
 VANCE STRONG added that one of the real issues that also supports             
 this legislation is welfare.  If a mother is on welfare and a                 
 responsible dad wants to be in his child's life, and then that                
 mother agrees to give 50 percent visitation, that cuts off her                
 welfare fund.  That's an incentive for her not to go mediation, and           
 mandatory mediation would take that tool away from her.                       
                                                                               
 Number 620                                                                    
                                                                               
 SENATOR LEMAN commented that he and Senator Green are both strong             
 supporters of welfare reform that gets down to some of the core               
 issues of what's breaking the family apart.  There is something               
 wrong when there is an incentive not to cooperate, not to                     
 participate in the process, and, instead, not to be a functioning             
 member of society, with government not only condoning it, but                 
 paying for it as well.                                                        
                                                                               
 Number 646                                                                    
                                                                               
 SENATOR GREEN said she had two people call her and tell her their             
 spouses had checked with AFDC and had made all prior arrangements             
 before they left the house, before they filed for divorce, and had            
 pre-qualified for benefits.  She said there is something wrong when           
 our state, by its cooperation, gives people permission to go in a             
 route when there might be others ways to go.                                  
                                                                               
 There being no further witnesses to testify, SENATOR GREEN                    
 adjourned the meeting.                                                        
                                                                               
    - - - - - - - - - - - - - - - - - - - - - - - - - - - - -                  
                                                                               
 The following are excerpts from a faxed letter to the committee               
 from Kathleen G. Anderson and James R. Carr of The Arbitration &              
 Mediation Group (TAMG) for inclusion in the record.                           
                                                                               
 "We write to offer our testimony concerning SB 156.  We are unable            
 to appear in person.                                                          
                                                                               
 TAMG commends Senator Green's efforts to engage divorcing parents             
 in mediation, particularly in resolving issues concerning the                 
 parenting of their children.  Mediation has been shown to be                  
 successful in such cases, for a number of reasons.  Those reasons             
 are principally the voluntary nature of the process, the                      
 confidentiality of the process (which works to allow parents to               
 explore their true interest and needs), and the neutrality   of the           
 mediator (which works to insure that the parties engage in a                  
 process designed to empower them both).                                       
                                                                               
 However, many of SB 156's provisions run contrary to the                      
 fundamental principles of the mediation process, particularly in              
 the following:                                                                
                                                                               
 1)  Subsections (a) and (c).  A court's mandatory order to                    
 mediation, in combination with requiring that the mediator report             
 to the court the identity of a party who "refuses to attend                   
 mediation sessions or refuses to negotiate in good faith" voids the           
 empowerment aspect of the mediation process.  It breaches                     
 confidentiality.  NO other jurisdiction has enacted court annexed             
 mediation as is proposed here.  The language is contrary to                   
 multiple national standards of practice, standards of conduct, and            
 codes of ethics.                                                              
                                                                               
 2)  Subsection (b).  Removing discretionary authority from the                
 court, who may be apprised of more information than is a mediator,            
 is a denial of due process.  Mediation is only one of the many                
 forums in which conflict may be resolved.  It should not be used as           
 the only one.                                                                 
                                                                               
 3)  Subsection (c).  The provision which requires a court to award            
 custody based on a party's "refusal" to mediate or negotiate is               
 punitive and again, contrary to the basic principles of the                   
 mediation process.  The use of a clear and convincing evidence                
 standard will only pit parents against one another even more                  
 deeply, rather than to bring them to points of collaboration.                 
                                                                               
 TAMG has extensive resources which may be of assistance to the                
 Senator, including a recently published compilation of current                
 court-annexed mediation programs from all 50 states.  This resource           
 includes program components, structure, statistics, etc.  Other               
 resources contain specific statutory language.  TAMG would welcome            
 the opportunity to work with the Senator on this important                    
 legislation.  Please do not hesitate to call."                                
                                                                               
                                                                               

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