Legislature(1995 - 1996)
10/20/1995 09:00 AM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
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.
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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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