Legislature(2015 - 2016)CAPITOL 106
03/29/2016 03:00 PM House HEALTH & SOCIAL SERVICES
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| Audio | Topic |
|---|---|
| Start | |
| HB200 | |
| HB334 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 200 | TELECONFERENCED | |
| += | HB 334 | TELECONFERENCED | |
| + | TELECONFERENCED |
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.]
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