Legislature(2015 - 2016)CAPITOL 106
03/22/2016 03:00 PM House HEALTH & SOCIAL SERVICES
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| Audio | Topic |
|---|---|
| Start | |
| HB315 | |
| HB334 | |
| HB328 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 315 | TELECONFERENCED | |
| *+ | HB 334 | TELECONFERENCED | |
| *+ | HB 328 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 334-CHILD CUSTODY;DOM. VIOLENCE;CHILD ABUSE
3:47:10 PM
VICE CHAIR VAZQUEZ announced that the next order of business
would be HOUSE BILL NO. 334, "An Act relating to visitation and
child custody."
3:47:42 PM
REPRESENTATIVE CATHY MUNOZ, Alaska State Legislature, explained
that she had given a lot of thought to AS 25.24.150, and its
judgements for custody. She relayed that she had met several
individuals who had experienced significantly damaged
relationships with their children due to the application of this
law. She paraphrased from the Sponsor Statement, which read:
HB 334 was introduced to give judges more discretion
in determining the best interest of the child in
custody cases. Currently, AS 25.24.150 includes a
provision that if a parent has been accused of
domestic violence that parent may not be awarded sole
or joint physical or legal custody of the child.
Although there is a rebuttable presumption in place to
overcome this provision, it is a lengthy process
involving the requirement to complete a one year
batterer's intervention program. Domestic violence is
broadly defined to include an ex-parte domestic
violence order, a violation of an order, misdemeanor
assault, or allegations of abuse. In 2004, HB 385 was
signed into law which established the rebuttable
presumption. The intent of this legislation was to
ensure those with a criminal history of domestic
violence were held accountable for their actions and
that the children in question were protected. At times
the provisions of AS 25.24.150 are used for custodial
advantage. In these instances, the discretion of the
court is limited and the best interest of the child is
affected. The U.S. Department of Health and Human
Services states, "Fatherless children are at a
dramatically greater risk of drug and alcohol abuse."
Additionally, they state "Fatherless children living
in homes without contact with their biological father
are twice as likely to drop out of school." HB 334
seeks to give flexibility to judges, while maintaining
the presumption for those with criminal domestic
violence convictions while ensuring that the well-
being of children remains our primary priority.
REP. MUNOZ read from the proposed bill, page 4, line 29:
The willingness and ability of each parent to
facilitate and encourage a close and continuing
relationship between the other parent and the child
except that the court may not consider this
willingness and ability if one parent shows that the
other parent has sexually assaulted or engaged in
domestic violence...
REP. MUNOZ expressed her concern with the "engaged in domestic
violence" language. She declared that there was a rebuttable
presumption in which the parents accused or convicted of
domestic violence on one or more occasions could complete a one
year batters' intervention program, although the parent could
only see the child under supervised conditions on a very limited
basis during this year. She reported that Alaska had some of
the toughest domestic violence laws in the U.S. She stated that
the changes proposed in the bill would not weaken the laws, and
the domestic violence orders or the process for filing would not
change. She shared that the proposed changes to the law would
require a conviction of domestic violence for those provisions
of AS 25.24.150 to apply in custodial decisions, and would
result in more equity, due process, and the best interest of the
child to be the first priority in determining custodial
arrangements. She shared an anecdote for the problems with the
statute.
3:54:43 PM
[Vice Chair Vazquez returned the gavel to Chair Seaton]
REPRESENTATIVE MUNOZ, in response to Representative Tarr,
explained that the current law could be used for custodial
advantage, as it was as ex-parte filing which did not require
both parties to be present. She shared that any contact during
this time could result in a violation of the ex-parte order, and
be considered a domestic violence incident.
3:56:35 PM
CHAIR SEATON opened public testimony.
3:56:47 PM
AL LEVY, Chair, Board of Psychologist and Psychological
Associate Examiners, stated that he was representing himself and
the interests of his clients. He declared that he was opposed
to HB 334. He shared that he was a therapist in private
practice in Anchorage, he worked with children and families many
of which were families going through divorce, and that he had
been addressing domestic violence and its effects for almost 30
years. He emphasized that passage of proposed HB 334 would
"roll back the clock 30 years in terms of protecting children
and victim parents to a time when there was little recourse for
victims and children." He declared that children and victim
parents had the right to live free of abuse and the threat of
violence, they deserved safety. He stated that the proposed
bill would cost too much money at a time when the state could
least afford it, as it would dramatically increase costs to the
State of Alaska. He explained that raising the bar from a
finding of domestic violence by the preponderance of evidence to
the conviction of a crime of domestic violence, which was beyond
a reasonable doubt, would lead to increased demands on the state
attorney general, as well as municipal prosecutors to prosecute
every case of domestic violence. He stated that there would
also be increased demands on the state troopers, police
departments, the public defender's office, the Office of Public
Advocacy, the courts, and the Office of Children's Services. He
emphasized that the rebuttable presumption worked, it required
the judge to find the domestic violence, and the current law did
a good job protecting vulnerable children and victim parents.
He acknowledged that errors for finding domestic violence when
none had occurred could happen, although these cases were the
exception, and not the rule. He declared that due process
rights were currently observed, as parents facing accusations of
domestic violence were afforded the opportunity to face their
accuser, hear and see the evidence, and offer evidence in
return. He stressed that the proposed bill was not restoring
any lost rights to accused parents, but was, instead, denying
the right to safety for vulnerable children and victim parents.
He declared that raising the standard to a criminal conviction
beyond a reasonable doubt was unreasonable and unrealistic to
the victims of domestic violence. He said that education and
better training for judges, custody investigators, attorneys,
and social workers was needed, as this would increase knowledge,
accuracy, and understanding about domestic violence. He relayed
that safety was the highest priority, not parents' rights.
4:04:12 PM
REPRESENTATIVE TARR mused that the challenge was that "human
relationships are so complex." She pointed to the potential to
behave in damaging ways during custody battles and the
dissolving of relationships. She asked if there was a way to
address these circumstances for who was telling the truth.
MR. LEVY offered his belief that the primary need was for better
training in education, as every dollar invested would bring ten
times the return in dividends for savings in cost, heartache,
and damage to people. He suggested to not cut the budget for
the Alaska Network on Domestic Violence and Sexual Assault and
instead, to provide the resources necessary for education and
training. He suggested required training on domestic violence
to police officers, social workers, judges, and other key
players. He relayed that 10 percent of divorce and custody
cases take up 90 percent of the court time. He acknowledged
that these cases typically involved serious questions of harm,
substance abuse, and domestic violence, and required close
scrutiny by trained experts who knew what to look for. He
suggested that more resources be provided to state custody
investigators, as currently there was an income cut-off which
made it difficult for many people, with income above that
amount, to afford a private custody investigator. He reminded
the committee that every dollar spent on prevention would "reap
huge benefits down the road."
4:08:15 PM
DEBBIE HOLBROOK, Attorney, relayed that she had practiced
domestic relations and family law, as well as civil law over the
past 40 years. She shared that she had been a mediator for the
court system, as well as a guardian ad litem, and that she was
aware that all the sociological studies on the adjustment of
children after divorce was to make sure that the children had
frequent and open access to both parents. She reported that the
changes in the custody statute since 2004 had included
references to domestic violence which did not require a
conviction, so consequently there were now attempts to litigate
domestic violence crime in the midst of civil divorce cases
without affording the accused any of the criminal safeguards and
protections afforded someone if they were charged with a crime.
She opined that this had led to serious problems, and she stated
her support of the proposed bill. She offered her belief that
"the pendulum has swung too far on this domestic violence issue
at least with regards to private custody cases. I have seen
that allegations alone have become a bludgeon to be used against
fathers in custody cases." She stated that once the allegation
was made there was no longer a presumption of innocence. She
explained that the issuance of an ex parte restraining order was
the start of the difficulties for fathers, as this could result
in no contact or only supervised visits with the children. She
offered her belief that young fathers were not in the financial
position to afford an attorney and were often quite naïve and
unaware about the custody statutes, the repercussions, and the
breadth of the definition for domestic violence. She relayed
that her experience indicated that many women were encouraged to
use this as a "weapon." She said that many judges were worried
about looking soft on domestic violence, and often cited that
their hands were tied by the statute. She opined that most
people were not aware of how very broad the definition for
domestic violence had become, and could now include texting,
yelling, and telephone conversations. She declared that she was
not trying to minimize domestic violence, but that requirement
of conviction allowed the accused some protections when accused
of something this serious. She opined that the legislature
needed to be aware when removing obstacles, and that children
needed access to both parents.
4:16:02 PM
ANDY HARRINGTON said that he had done a lot of pro bono work
over the years. He offered six points supporting his
understanding that the approach of the proposed bill was not a
good idea. He offered his first point that the history of
domestic violence proven by a preponderance of the evidence
before a civil court was an appropriate basis to apply the
presumption that was currently in the statute. He stated that
the requirement for a conviction proved before another court by
a reasonable doubt would run the risk of erasing some of the
progress that had been made over the last several years on the
overwhelming domestic violence problem. He noted that the
Alaska Supreme Court had already given the statute an
appropriately narrowed interpretation which prevented it from
being abused and misused in many situations, and that this
should be taken into account. He suggested that the proposed
bill could expand application of the presumption, as the history
of domestic violence meant two incidences, or one incident that
caused serious physical injury. He offered his belief that this
needed to be thought through quite carefully, as it could
broaden the application.
4:17:46 PM
[Chair Seaton passed the gavel to Vice Chair Vazquez]
4:18:06 PM
MR. HARRINGTON stated that there many reasons why there were
more incidents of domestic violence than there were convictions,
including under reporting, lack of law enforcement, and courts
that needed to decrease hours. He suggested that, should the
legislature couple this change with a significant increase in
law enforcement, prosecutors, public defenders, and courts, it
might then make some sense. He stated his concern with the
disparate impact on rural and urban areas, as there was "an
unfortunate reality that criminal law enforcement cannot be as
responsive to Alaska's rural areas as it is in urban areas. We
can't afford to achieve that equality." He offered his belief
that this was another reason why the requirement for a
conviction before the presumption of guilt was applied was not a
good idea. He asked that the legislators not make up their
minds based on hearing one side of an anecdote that may or may
not be representative of what was happening on a larger scale.
VICE CHAIR VAZQUEZ asked for him to cite the Supreme Court
decision regarding this statute.
MR. HARRINGTON, in response, relayed that, in 270 P.3d 737
(2012), the court had held that completion of a batterer's
intervention program was not the only way to rebut the
presumption, and that the Superior Court was not prevented from
completing a best interest analysis.
REPRESENTATIVE WOOL asked about earlier testimony that the
definition of domestic violence had expanded to include texting,
phone calls, and yelling, and whether this broader definition
had now included more people "under the umbrella of domestic
violence." He asked if this could preclude someone from having
any visitation with their child.
MR. HARRINGTON opined that these and similar incidences could be
a violation of the domestic violence statute if committed in
violation of an existing protective order. He expressed
agreement that it was appropriate to be held accountable. He
shared that, if the point was made that the definition of
domestic violence was too broad, then perhaps it should be
reviewed to determine if it encompasses items that it should
not, and then adjust the definition. He offered his belief that
the approach of the proposed bill was not the right solution to
that particular problem.
REPRESENTATIVE WOOL suggested that this may be a case by case
situation.
4:23:13 PM
JOHN HOAG, Attorney, said that he had sent in comments [included
in members' packets]. He reported that he had volunteered and
handled about 90 domestic violence cases pro bono over the past
9 years. He stated that rarely had he seen a case with one
incident of domestic violence, as most cases had patterns of
domestic violence that usually occurred over time. He expressed
agreement with earlier testimony that it was "the most un-
reported crime probably there is." He said that requiring a
conviction was a bad idea, and he testified against the
amendments. He clarified that attorneys were appointed if a
person could not afford them in a custody case if there had been
issues of domestic violence. He offered his opinion that judges
were very reluctant to order supervised visitation, and that it
was usually arranged through family or friends, and it was not a
cost factor. He reported that the Supreme Court had deemed
there must be a pathway for unsupervised visitation. He stated
that the cases where this supervision remained in place were
most often when the party did not follow the court directives.
He urged the committee not to pass this bill, as it was his
experience that most women did not use this as a weapon. He
suggested that the definition of domestic violence be expanded
to cover abusive relationships and the terrible effect on
children.
4:27:01 PM
KATHRYN SODEN, Senior Staff Attorney, Legal Program, Alaska
Network of Domestic Violence and Sexual Assault (ANDVSA), stated
that she was speaking in opposition to proposed HB 334. She
shared that she had worked with ANDVSA for more than five years,
and had represented men and women who had experienced domestic
violence in family law cases. She expressed her concern that
there were many reasons for a lack of criminal conviction for
domestic violence, although the victims and the children still
needed the protections of the law. She said that the rebuttable
presumption law had protected children in many cases where there
were not any criminal convictions. She shared two anecdotes,
the first of which included four to five criminal charges for
domestic violence being filed against the abusive mother, but
subsequently being dismissed. She relayed that the domestic
violence rebuttable presumption had then been applied and the
custody of the children was awarded to the father. She stated
that this made the children safer. In the second case, the
mother had endured years of abuse from the father, but had never
sought help from the police because she did not speak English
and was isolated within an ethnic community. Again, although
there were no convictions against the father, the court applied
the rebuttable presumption law and awarded custody of the
children to the mother. She stated that in both cases, when the
presumption was applied, the abusive parent still had frequent
regular and open contact with the children while that parent was
required to get services to address the problem. She declared
that the rebuttable presumption law was working as it should to
keep Alaskan kids safe. She reiterated her opposition to the
proposed bill.
MS. SODEN, in response to Representative Tarr, said that, in her
experience, an ex parte protective order alone was not
considered as an incident of domestic violence, in order for the
court to apply the presumption law. She said that the
presumption law required a preponderance of evidence, which was
not the standard for an ex parte that domestic violence had
occurred. She relayed that the system could make the finding of
domestic violence upon further litigation, as then both sides
would have the opportunity to be heard. She said that it was
not her experience that the courts would cut off kids from their
parents for a year, and that the courts were very hesitant to
take away visitation even in extremely abusive situations. She
declared that it was important to keep the presumption law in
its current state as it allowed the victim's parent the safety
of having sole legal and primary physical custody until the
abuser gets treatment for the issues. She stated that it was an
extremely rare circumstance for the court to cut off all contact
with the children.
4:33:18 PM
SARALYN TABACHNICK, Executive Director, AWARE, stated that the
proposed bill was going in the wrong direction for supporting
victims of domestic violence, particularly children. She
pointed out that not every victim of domestic violence even
reported to law enforcement. She shared that her experience at
AWARE was for children who had been ordered by courts to spend
unsupervised time with an abusive parent, one that had been
hurtful to their mother, a parent they were afraid of, and a
parent who may be directly abusive to the child, as well. She
stated that much more often at AWARE it was mothers who were
trying to protect their children.
The committee took a brief at-ease.
4:35:55 PM
MS. TABACHNICK continued her testimony, stating that often the
children were sent to be with a parent who terrified them. She
reported that often this was a regular repetitive pattern. She
pointed out that unless a child could articulate what was
terrifying for them, there was not any protection for them, and
that they could not tell until they felt safe. She continued
and stated that children will not feel safe until they were free
from harm and fear. She relayed that children were being raised
learning that their needs and feelings did not matter, their
boundaries were not respected or important, and they did not
have rights to boundaries. She stressed that this set up the
most vulnerable children to be harmed. She declared that she
found proposed HB 334 "to be one of the most disheartening bills
I've ever spoken to in my nearly 30 years at AWARE. If
anything, we need laws that further protect children; not laws
that make it more difficult to keep them safe." She reported
that research had indicated that children were most helped and
healed after divorce when both parents got along. She addressed
the fear induced by domestic violence, and pointed out that
texting and telephone calls by a person who has committed
domestic violence were another source of fear. She stated that
"we all deserve to live without fear and without concern for
fear particularly in our intimate partner relationships and in
our parenting relationships."
4:38:26 PM
REPRESENTATIVE TARR relayed that there could be hundreds of
phone calls and texts harassing an individual and creating a
feeling of being in real danger.
MS. TABACHNICK stated that these were power and control tactics
which was what domestic violence was about, the control of
another person by keeping them in fear.
4:39:30 PM
KIRSTEN SWANSON, Attorney, paraphrased from a letter she had
submitted to the committee, which read: [included in members'
packets.]
I am writing this letter in support of HB 334. This
bill will address some of the unintended consequences
in the domestic violence statutes. No one should be
the victim of violence from a domestic partner, but
the current statutes are encouraging unnecessary
litigation and hurting children. Domestic violence
restraining orders are civil cases, not criminal cases
so the burden of proof is minimal. This makes it much
easier for someone to now use the court system as a
weapon against the other parent. Frequently, people
will file a restraining order before they file for
divorce or custody of their children. This allows the
person who makes the allegation to kick the other
parent out of the home, restrict all access to the
children, freeze the bank accounts and change the
locks. Once the parties are involved in the custody
case any allegations of domestic violence have a
tendency to severely curtail access of the parent
being accused of abuse to their children. It also
makes the case more litigious and hostile so that it
is unlikely that the parents will be able to mediate
their differences and successfully co-parent their
children. The presumption in custody cases is that the
non-abuser is the better parent. Therefore, a person
who can convince the court that they are victims of
past domestic violence will get full custody of the
children. Unfortunately, the presumption advantage has
encouraged people to exaggerate and make up stories to
get the other parent labeled as a perpetrator of
domestic violence. Even if the domestic violence
allegation is more than ten years ago, has nothing to
do with the children, does not include violence and
was never previously reported to anyone the allegation
is enough to immediately deny access of the other
parent to the children. Children are then left
confused and hurt as to why a parent they love has
suddenly and without warning disappeared from their
life. The increase in domestic violence restraining
order hearings and domestic violence allegations in
custody cases clogs the court system with unnecessary
litigation. It costs the judicial system resources
better used in prosecuting criminal cases of domestic
violence. It encourages custody hearings to be
contentious, winner take all affairs that make it
difficult for parents to put aside their differences,
put the best interests of their children first and
learn to co-parent their children. HB 334 will
actually protect victims of domestic violence and
children in custody cases by removing the impetus for
exaggerating and lying about prior arguments and
disagreements. When the court system is inundated with
questionable claims of domestic violence it has an
impact of making domestic violence seem less serious.
This hurts people who truly are victims in need of
help as their cases end up delayed due to an
overburdened court system.
4:44:17 PM
FRED VALDEZ, Attorney, stated that he had primarily practiced
family law for the past 35 years, and had been a prosecutor of
domestic violence for 1.5 years. He said that he was against
the proposed bill. He reported that the crime being charged was
often not the first instance of domestic violence, as often it
was not until after many incidences that the victim took the
initiative and called for help. Hence, a standard of conviction
of a domestic violence crime was not a good standard for change.
He suggested other changes to guard against the use of domestic
violence as a tool to gain advantage in the battle over custody.
He stated that the judges had a very good grasp for these
situations. He shared court room presentations of some texts,
stating that they were "too vile to even repeat in this
testimony. They threaten, they coerce, they call names..." He
expressed agreement that these texts were about power and
control, emphasizing that, as Alaska had a huge domestic
violence problem, the proposed bill was a step backwards.
4:47:12 PM
JOSEPH COULTER-KHAN read from a prepared statement, which read:
My name is Joseph Coulter-Khan. I am fourteen years
old. I am here to tell you why I think HB 334 is a
step in the wrong direction. My father has not been
convicted of domestic violence, but I am legitimately
terrified of him. When I lived with him, I saw him
yell constantly. I saw him beat up my sister and shove
her down the stairs. I saw him constantly threaten my
mother, my sisters, and me. He embarrasses me in
public with his yelling and anger. I'm afraid of being
with him. Every time I get a phone call my stomach
drops, I start to sweat, to panic, pace, and go into a
whole anxiety attack. I start hyperventilating. I
don't want to live with that kind of pressure and
anxiety. It is a negative energy and distracts me from
my schoolwork and from doing the things that I love.
Because my father has not been convicted of domestic
violence, if HB 334 passes I would have to go with
someone who has abused me for 10-12 years. Why should
I be with him? Why should he have the right to me when
he is the one who abused me? If he has a say in
everything I do, he may make decisions that are not
the best for me. He told me that if he gets full
custody he will take me to Arizona and not let me
contact my mother at all. He says bad things to me
about my mother. Some mothers are too afraid to call
the police because they are afraid of what the abusers
will do to them when they get out. So then there are
abusers who get custody because they aren't held
accountable for their abuse. My childhood was
stressful and now that I'm away from my father I'm
feeling better. If I have to spend more time with him,
it will waste the rest of the childhood that I have. I
won't have a regular childhood. You don't know my
father. You don't know what he's done. But there is no
conviction of domestic violence. HB 334 violates my
rights as a minor to safety from my abusive father.
4:50:54 PM
CATHY COULTER-KHAN said that she was also a victim of domestic
violence, and shared her educational background, including that
she was a Fulbright Scholar and a PhD. She stated that she had
spent more than 20 years in an abusive marriage in which she was
physically and emotionally abused. She shared an incident of
violence in which her husband was subsequently arrested. She
stated that she did not leave simply because she did not have
the means to leave and she could not see an escape route. She
did not know where she would go and how would she support
herself and her children. As a result, she denied everything
and the charges were dropped, and there was not a conviction for
domestic violence. She pointed out that the proposed bill would
not have allowed that instance of domestic violence to be
consequential in a current hearing, as it had happened more than
five years prior. She explained that abusers would isolate,
denigrate, and cut their victims off from any source of
independence. Life was a series of crises and day to day
survival. She relayed instances of abuse, shame, and mockery
her husband had heaped on her children until one of her
daughters had entered the crisis center during her junior year
in high school. She pointed out that there had never been a
conviction of domestic violence. She reported that it was not
until after more than 20 years of abuse that she was able to
leave, because she had a job that would support her, and she had
family and friends who supported her. She stated that this was
her fourth year of divorce litigation, and that her husband had
not paid any child support for almost three years, even as he
left her with marital debt and froze their assets. She declared
that he was using the legal system to perpetuate power and
control, and that custody of the children was a means to exert
control. She acknowledged that her evidence was flimsy, as
there were not any convictions, and it was difficult to put
together sufficient evidence to protect her children. She asked
how women without an education, a job, or a family to support
them could get a conviction. She stated that requiring the
conviction was to support the abusers, perpetuate the abuse, and
endanger the children. She stated her opposition to the
proposed bill.
VICE CHAIR VAZQUEZ noted the committee was running out of time
and "we're going to have to cut off testimony on this particular
bill. I apologize."
[HB 334 was held over.]