HB 334-CHILD CUSTODY;DOM. VIOLENCE;CHILD ABUSE  4:01:48 PM CHAIR SEATON announced that the final order of business would be HOUSE BILL NO. 334, "An Act relating to visitation and child custody." 4:02:14 PM CRYSTAL KOENEMAN, Staff, Representative Cathy Munoz, Alaska State Legislature, reminded the committee that HB 334 was introduced to give judges discretion in determining child custody schedules, in the best interest of the child. She shared that during the numerous discussions with judges and attorneys regarding the statutes surrounding the child custody schedules, there had been a request for discretion, as the rebuttable presumption could result in unintended consequences. She acknowledged that this was an emotional issue, and she expressed a desire to protect the children while not damaging the bonds between parents and children. She mentioned that nothing in the proposed bill prevented a judge from consideration of any evidence of domestic violence or sending someone to a batterer's intervention program or to substance abuse counseling. 4:05:07 PM MS. KOENEMAN paraphrased from the sectional summary [included in members' packet], which read: Section 1. Changes the phrase "has committed a crime involving domestic violence" to "has been convicted of a crime involving domestic violence" for purposes of the court's authority to set certain conditions for visitation in proceedings involving domestic violence. Section 2. Changes the phrase "a history of perpetrating domestic violence" to "has been convicted of a crime involving domestic violence" for purposes of the rebuttable presumption against delegating a deployed parent's visitation rights to certain family members in a custody or visitation proceeding. 4:05:50 PM MS. KOENEMAN moved on to Section 3, Section 4, and Section 5, which read: Section 3. Changes the phrase "a history of perpetrating domestic violence" to "has been convicted of a crime involving domestic violence" for purposes of the rebuttable presumption against delegating a deployed parent's visitation rights to certain family members in a proceeding for modification of a custody or visitation order. Section 4. Changes the phrase "if one parent shows that the other parent has sexually assaulted or engaged in domestic violence" to "if one parent has been convicted of a crime involving sexual assault or domestic violence" relating to the factors that a court may consider in determining the best interests of the child for custody. Adds evidence of sexual abuse in the proposed custodial household to the list of factors a court may consider in determining custody. Section 5. Changes the phrase "a history of perpetrating domestic violence" to "has been convicted of a crime involving domestic violence" relating to a rebuttable presumption in custody judgments. 4:06:43 PM MS. KOENEMAN discussed Section 6, Section 7, and Section 8, which read: Section 6. Deletes the reference to the rebuttable presumption against granting custody to a parent who has a history of perpetrating domestic violence. Section 7. Changes the phrase "a history of perpetrating domestic violence" to "has been convicted of a crime involving domestic violence" for purposes of custody determinations in cases where the court finds that both parents have been convicted of a crime involving domestic violence. Section 8. Changes the phrase "a history of perpetrating domestic violence" to "has been convicted of a crime involving domestic violence" for purposes of the conditions a court may set before allowing supervised visitation. 4:07:44 PM MS. KOENEMAN concluded with Section 9, which read: Section 9. Limits the applicability of the changes made by the bill to visitation and custody orders issued on or after the bill's effective date. 4:08:04 PM CHAIR SEATON asked Ms. Koeneman to discuss rebuttable presumption and review its interpretation and function. MS. KOENEMAN explained that currently, if there had been one serious incident of domestic violence or more than one instance of domestic violence, then the rebuttable presumption would take place. In determining the history of domestic violence, the judges used a preponderance of evidence. She relayed that the application could include a domestic violence order or a restraining order that had been put in place. She indicated that [even one] incidental contact violation of a restraining order would invoke the rebuttable presumption. She declared that this would result in the loss of sole or joint legal or physical custody of the child, and there could be only a supervised visitation. She explained that a judge could order attendance at a batterer's intervention program, although a prerequisite was the admission of guilt. She pointed out that not admitting guilt, even when a person truly felt they had not done anything wrong, would prevent entry into the batterer's intervention program. CHAIR SEATON asked for clarity to the rebuttable presumption. MS. KOENEMAN explained that with a rebuttable presumption, after completion of the batterer's program, the person could return to the judge and ask for a change in the custody schedule. 4:12:05 PM CHAIR SEATON opened public testimony on HB 334. 4:12:41 PM PAUL GRANT, Attorney, shared his background in family law and as a volunteer with Alaska Network on Domestic Violence and Sexual Assault (ANDVSA), although, as a legal practitioner, he stated his strong support of the proposed bill. He stated his philosophical objection to presumptions in general, and he opined that presumption meant an essential conviction of wrongdoing without any showing particular to the person. MR. GRANT paraphrased from his written testimony [included in members' packets], which read as follows [original punctuation provided]: I write in strong support of HB 334. As a private practice lawyer with extensive experience in custody litigation, it has been my observation that the domestic violence provisions of AS 25.24.150 (g) et seq. are often used not for their intended purpose, the protection of children from harm, but rather to gain a tactical advantage in custody disputes. It has been my further observation that "the presumption" is very often applied in cases in which there has been absolutely no documented harm to the child, but only situational or technical violations of the law having no possible bearing on the safety or best interests of the child. As an example, let me cite a hypothetical case - but one that is very similar to cases in which I have been involved. The father, during an argument with mother, slammed a door, causing damage to the door frame. The father was never charged with a crime. Their child was in the house but there is no evidence the child actually witnessed the incident (he may have heard the argument). The mother obtained a domestic violence restraining order, claiming that the door slam was an assault, and 1 also that the door damage was malicious destruction of property (both "crimes of domestic violence" within the meaning of AS 24.25.150). Subsequently, the father inadvertently violated the protective order by attempting to speak with the mother when he encountered her in the grocery store. Since no conviction of a crime is required under the statute, the father was now guilty of two incidents of domestic violence, and in the ensuing custody case, the court had no option but to apply the presumption of domestic violence. The father was reduced to minimal supervised visits with his son. Unfortunately, the only visitation supervisors he could find charged $75 per hour for supervision services. Because he was paying full child support, he simply could not afford to see his son, and consequently that relationship has been largely destroyed. What is remarkable about this very common scenario is that there was absolutely no demonstrated harm to the child caused by the supposed two acts of domestic violence. There was no physical violence directed at any person involved. There was no nexus between the acts of the father and the best interests of the child. Yet, on this flimsy showing, the strong relationship between the father and his son has been functionally destroyed. The provisions of HB 334 requiring actual conviction of crimes of domestic violence, rather than just "preponderance of evidence" allegations, will go a long way toward remedying these abuses. Another admirable feature of the bill is that it confines consideration of convictions to a reasonable 5 year period under AS 25.20.061. However, I would suggest that the 5 year limitation set out in AS 25.20.061 be included also in AS 25.24.150. This would clarify the legislature's intent to limit consideration of domestic violence allegations to a reasonable time period. As interpreted currently by the Supreme Court, because there is no time limitation imposed under AS 25.24.150, the courts are required to consider allegations of domestic violence that have not been actively litigated, no matter how old, and no matter if the parties settled their custody dispute. Here is an example that shows the unjust results that can flow from this rule. I recently completed a six day trial in a custody modification case that was largely based on allegations of domestic violence that were 8 to 10 years old. The parties had settled their case without litigating the DV allegations in 2009. The mother now sought to have the court impose the DV presumption even though the parties had shared physical and legal custody since their separation in 2008. As you can imagine, the difficulty of disproving allegations that are ten years old is tremendous. Fortunately the mother was found not to be credible and the motion was denied; however, the parties spent six days of the court's valuable time getting to that result. Had there been a statute of limitations on allegations which might trigger the presumption in AS 25.24.150, the case would never have been brought. A final thought on the bill is this, and I recognize that it may be controversial. It seems to me that the current legislation conflates protection of the child with protection of the former spouse. In theory, there is no reason that the former spouse needs protection; to the extent that it is used that way without considering the negative impact on the relationship of the child to the alleged perpetrator, it can actually do harm to the child. I believe that there should be some consideration given to narrowing the list of triggering crimes of domestic violence to ones in which the petitioner/plaintiff can demonstrate a direct impact on the well-being of the actual children involved (rather than a hypothetical or theoretical impact on children in general, or an impact on the other parent). I would like to see the bill amended to require both conviction and a showing that harm occurred or is likely to occur to the child involved in the actual case before the court. With these minor qualifications, I heartily applaud the legislation. This is a set of statutes that has been misused for far too long. Many parental relationships (usually, though not always of fathers to their children) have been destroyed based on completely hypothetical and theoretical harms that simply do not exist in the particular case before the court. HB 334 is a great step toward remedying the situation. MR. GRANT offered his belief that the proposed bill was a very good start at resolution for some of the problems. 4:20:52 PM FRED TRIEM, Attorney, paraphrased from a prepared document, [included in members' packets], which read as follows [original punctuation provided]: Six arguments in support of the original bill first presented before CS: #1 Original HB 334 eliminates a vague, ambiguous, ill- defined term: "a history of perpetrating" with a precise term: "convicted". #2 Vague law provokes disagreement - inspires, invites litigation. #3 H&SS Comm Substitute is step backwards replaces precise with vague "clear and convincing evidence" which is not a precise legal term. #4 Original HB 334 will streamline judicial proceedings by omitting collateral trials on side issues (a) "committed a crime"; (b) "a history of perpetrating DV"; "a history of perpetrating"; (c) "shows that the other parent has sexually assaulted or engaged in domestic violence"; [presumption of] "a history of perpetrating"; multiple: "a history of perpetrating" (8 times) …. #5 Protects the parties by assuring that (a) DV accusation has been brought in a timely fashion (b) with fair advance notice to the accused, and (c) has been adjudicated by a judge and jury. #6 Will conserve judicial resource: reduce judicial burdens, save court time, attorney efforts (public & private attorneys), will save court system money $ by lowering number of disputes and reducing extent of litigation. Summary: HB 334 replaces vague, ambiguous law with accurate, precise law. Beauty of the Original Bill: will reduce litigation and judicial work, save Alaska Court System time and money, discourage wasteful legal disputes. 4:27:09 PM BRENDA STANFILL, Interior Alaska Center for Non-Violent Living (IAC), paraphrased from a prepared statement [included in members' packets], which read as follows [original punctuation provided]: I am following up on a phone call that I made to your office yesterday. I know things are very busy and wanted to make sure I connected with your office to state my strong concerns with HB334 passed from House Health and Social Services. In the original bill the language for when the rebuttable presumption to the issue of domestic violence and custody would be raised was changed to require a conviction of domestic violence instead of a "history defined as two or more incidences or one serious injury event" There was strong opposition to this change in language as often times these cases are not pursued by the district attorney, some areas have no law enforcement to call, untrained law enforcement arrest the victim when not recognizing the difference between self-defense and primary aggressor, and that someone could have a conviction due to a very bad time in their life but not truly be an individual who uses abusive tactics to control their family. In response to the concerns the bill sponsor rewrote the bill, however, now the proposal is to require clear and convincing evidence of the domestic violence instead of the preponderance of the evidence that is normally required in custody consideration, replacing how history was determined as two instances to just be history determined at the discretion of the courts, or a conviction for domestic violence. In addition, it removes the rebuttable presumption and treats domestic violence as just another issue considered in custody. Having worked on the Criminal Justice Commission this year I realize there are two sides to each issue coming before you and that you must weigh out what is best for our state in the larger scheme of things and not just based upon one or two cases. Currently the information being presented on why this bill is needed is based those one or two cases where it didn't appear to go as planned. I have heard a few Dad's feel they were unjustly impacted by this presumption when it was applied to them and a few attorneys that appear to have lost custody cases and feel that the domestic violence that had occurred in the case should not have been considered as hard as it was. As we know domestic violence is learned in the home and the largest predictor of a future batterer is what he or she observed in the home environment. Knowing this it is imperative that we have a process in place to identify when this behavior is happening and once it is recognized that we limit the child's exposure to this until the abusive individual get helps for their issue. The current "rebuttable presumption" provides a hearing for the mother and father to present the case and the judge makes a determination on whether it applies. If it does apply, the individual found as the abuser's time is limited and supervised until they complete the programs set out by the judge where they can learn skills that allow them to be a parent modeling healthy relationships instead of "growing" a new batterer. As you have heard me talk about in my testimony through the Criminal Justice Commission work and HB205, we have grown the offenders who are now in jail through the social issues they are experiencing as children and we have not intervened in. The presumption language passed in 2004 has saved victims lives and has provided an opportunity for children to interact with an abusive parent in a healthy way through monitoring and supervision until that parent gets the assistance they need to be able to model that healthy behavior without supervision. I have truly thought through whether there is a fix needed. I talked to judges, victims, lawyers, and advocates. The statute as currently written works and does not need fixing. I urge you to leave the current statute regarding the rebuttable presumption as currently written and to hold this bill. 4:31:53 PM SAMANTHA WEINSTEIN, Attorney, said the majority of her caseload is in Family Law, but she also works with the Alaska Network on Domestic Violence and Sexual Assault (ANDVSA). She added that she offered pro bono legal service to the Aiding Women in Abuse and Rape Emergencies (AWARE Inc.) shelter. She stated that she had a greater concern for men in the domestic violence proceedings as the current laws allowed that a father would lose the moment any allegations were stated, as neither ex-parte orders nor violations of these orders required any proof of an act of violence. She declared that these fathers were guilty until proven innocent, and even while working to prove their innocence, they lost time with their children. She listed the fears facing many of these fathers as a result of the accusations. She declared that the law was "in place to protect all citizens and sometimes there are oversights in the way a particular law is written. These oversights can be remedied without losing protections for our most vulnerable citizens." She emphasized that this was a request for protection "for both categories," stating that the proposed bill did not try to protect batterers, abusers, and perpetrators of domestic violence, and it did not force children to stay with an abusive parent. She declared a desire for those with an actual history of domestic violence, who had been tried and convicted with evidence brought against them, to be held accountable for their actions and thereby protect children from these situations. She relayed that the American justice system prided itself on "innocent until proven guilty," and that the laws should reflect this under all circumstances. She stated that allowing a parent to obtain custody on unfounded claims was "in opposition to the mission of our justice system and we need to change that." 4:39:11 PM JANE ANDREEN shared that she had spent 16 years working in domestic violence and sexual assault, recently working on prevention and health promotion in the public health arena, which included violence prevention, domestic dating, and sexual violence. She expressed her surprise at such a significant step backwards for protecting victims and children of domestic violence by the proposed bill. She directed attention to the Domestic Violence Act of 1996, which had set up a coordinated response, and included a look at the history of violence in determining custody cases. She shared her recent experience of attendance at the Alaska Public Health Summit, listening to a presentation for a community coordinated response to domestic violence, with accountability and services to address this. She expressed concern for the perpetuation of adverse childhood experiences (ACEs) and the impact of children being raised around violence. She encouraged the committee to not pass the proposed bill. 4:42:18 PM REPRESENTATIVE TARR questioned whether there was a middle ground option, if there were circumstances that the system was abused and resulted in unintended consequences. She shared that a suggestion from Legislative Legal and Research Services was for application of the "clear and convincing evidence standard." She asked if that would be beneficial and "the next step forward." MS. ANDREEN replied that she would need to look more closely at the legal definition, as it appeared to be more in the direction to which they intended to move. She stated that basing the proposed bill on a conviction would eliminate about 90 percent of the domestic violence cases, as a vast majority of domestic violence was not reported, with the remainder of reported cases having a less than likely chance of prosecution and conviction. CHAIR SEATON asked about the definition of domestic violence, which could include raised voices. He opined that this could be problematic when it carried with it the potential to lose custody of a child. He asked whether the definition of domestic violence should be modified for child custody cases. MS. ANDREEN reported that she had never seen a raised voice being defined as domestic violence. She expressed agreement that the legal definition for domestic violence should be reviewed if this was the case. She added that it was necessary to do a better job with training judges about domestic violence. She said that a raised voice used when there had been a consistent history of domestic violence was a controlling behavior. She opined that the common sense approach had been lost. 4:45:58 PM REPRESENTATIVE TARR directed attention to Section 5 of the proposed bill, which referenced the rebuttable presumption that a parent had been convicted of a crime involving domestic violence. CHAIR SEATON said that the committee was struggling with the issue and would appreciate any recommendations to ensure that justice was well served and that kids, adults, and their relationships were protected. 4:47:38 PM The committee took an at-ease from 4:47 p.m. to 4:50 p.m. 4:50:06 PM CHAIR SEATON brought the committee back to order. 4:50:22 PM CHAIR SEATON noted technical difficulties and asked the remaining two witnesses to forward written testimony to Chair Seaton's office. He closed public testimony on HB 334, and advised that if the committee so desires in the future, public testimony could be reopened. 4:51:05 PM REPRESENTATIVE CATHY MUNOZ, Alaska State Legislature, as prime sponsor of HB 334, shared an anecdote for the loss of child custody by a friend. She declared that she had felt obliged "to act and compelled to work toward a system that honors due process and that provides both parties in a custody dispute to have a fair hearing before the court." She expressed her belief that this was not the case currently, and that the law was broken. CHAIR SEATON mused that there had been many suggestions for changes to the proposed bill and that the committee was trying to find a middle ground, including the suggestion by Representative Tarr that there should be "clear and convincing evidence" as opposed to "conviction." He surmised that there was consideration for changes to the definition of domestic violence in child custody cases. REPRESENTATIVE STUTES stated her support of the proposed bill, and she offered an anecdote regarding her son. She declared that "it's just a cryin' shame" to allow these situations to destroy families. REPRESENTATIVE MUNOZ expressed agreement that the definition for domestic violence was quite broad, as it could include an ex parte order, a violation of the order, a misdemeanor assault threat of violence, or property damage. 4:56:57 PM REPRESENTATIVE VAZQUEZ, speaking as a co-sponsor of the proposed bill, offered her personal observations that the process can be manipulated during the custody proceedings. She suggested a review of the definitions and rebuttable presumptions, stating that it assumed guilt which then necessitated evidence to rebut the presumption. She suggested the need for a timeframe, as well. CHAIR SEATON suggested a need for amendments, declaring that this was a very emotional issue. He opined that the proposed bill needed to be narrowed or modified to make it through the system. 5:00:59 PM REPRESENTATIVE VAZQUEZ reflected that it was impressive that four attorneys who specialized in family issues had all declared there was an issue with the current statute. [HB 334 was held over.]