Legislature(2015 - 2016)CAPITOL 106
04/05/2016 03:00 PM House HEALTH & SOCIAL SERVICES
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| Audio | Topic |
|---|---|
| Start | |
| HB345 | |
| HB334 | |
| HB315 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 345 | TELECONFERENCED | |
| += | HB 334 | TELECONFERENCED | |
| += | HB 315 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 334-CHILD CUSTODY;DOM. VIOLENCE;CHILD ABUSE
3:47:47 PM
CHAIR SEATON announced that the next order of business would be
HOUSE BILL NO. 334, "An Act relating to visitation and child
custody."
3:48:30 PM
CRYSTAL KOENEMAN, Staff, Representative Cathy Munoz, Alaska
State Legislature, on behalf of Representative Munoz, prime
sponsor of HB 334, reported that the committee recommendations
had been taken into consideration and that she would provide a
proposed committee substitute (CS) for review and approval.
3:49:31 PM
The committee took a brief at-ease.
3:50:18 PM
CHAIR SEATON brought the committee back to order. He reopened
public testimony on HB 334, [which had been closed at the
previous bill hearing on 3/29/16].
3:50:56 PM
KEELEY OLSON, Executive Director, Standing Together Against Rape
(STAR), shared her background working against domestic violence
and sexual assault since 1989. She testified in opposition to
the proposed bill, as it did not provide the necessary
protections for the victims of domestic violence and their
children. She offered her belief that the requirement for
criminal conviction was too high a standard to be placed on the
victims of domestic violence when they were seeking civil and
legal protections. She suggested that the rebuttal of
presumption was a very effective tool to protect the safety of
victims and children, and that much of the testimony by
attorneys were complaints that this created havoc in the family
law courts. She stated that domestic violence was a messy
business, and was one of most underreported crimes in America.
She said that there would not be an increase of criminal law
convictions with this, and that the requirement for the
conviction would not offer any protection to the victims. She
declared that it was necessary to be cautious and to properly
vet the claimed experts of family law, as opposed to those who
have worked in the field and understand the dynamics of domestic
abuse. She said that for courts to take on the issue of
custody, it needed to be prepared to hear "some of the messy
business that goes on behind closed doors that is the typical
situation of domestic abuse." She stated her opposition to the
proposed bill.
3:56:13 PM
CHAIR SEATON relayed that the proposed CS had been revised to
change the standard from conviction to clear and convincing
evidence that there was a history of performing domestic
violence.
3:56:56 PM
CHRISTINE PATE, Legal Program Director, Alaska Network on
Domestic Violence & Sexual Assault (ANDVSA), stated opposition
to the proposed bill. She relayed that the legal program
provided civil legal assistance, primarily in family law cases,
to victims of domestic violence and sexual assault, as well as
legal advice and counsel to advocates in the ANDVSA member
programs. She shared her background in family law. She
expressed her understanding of how the custody statutes affected
victims, both before and since the enactment of the rebuttable
presumption law. She expressed concern for the effect on
children of this proposed legislation. She stated that the
rebuttable presumption law was enacted to protect Alaskan
children from the harmful effects of exposure to domestic
violence. She expressed agreement with the sponsor statement
that fathers were a critical part of a child's life; although,
she declared, it was most important for a child to have two
healthy parents. She stated that Alaska consistently ranked
near the top nationally for domestic violence and sexual
assault. She pointed out that the emotional, physical, and
mental health of children in homes with domestic violence was
detrimentally affected. She explained that the rebuttable
presumption against awarding a parent custody was enacted to
ensure that the court made consideration of domestic violence a
top priority in the decisions for custody of children, as prior
to this, domestic violence was only one of nine best interest
factors that could be considered by the court in these custody
decisions. She said that domestic violence was such an enormous
issue in Alaska that it needed to be more than one of the nine
best interest factors, declaring that the proposed bill would
return Alaska to these considerations unless there had been a
criminal conviction for domestic violence. She shared her
concerns for the proposed committee substitute regarding a clear
and convincing evidence standard. She offered her belief that
domestic violence was very hard to prove in court, as victims
often did not want to come forward because of fear or shame, and
often there was not extraneous evidence. She stated that the
clear and convincing standard made domestic violence even harder
to prove in a custody case, and she expressed support for the
removal of the criminal conviction standard. She opined that
this standard was an enormous burden to overcome, especially in
Rural Alaska. She stated that there was nothing in the
legislative history of the rebuttable presumption law that
indicated its purpose was to require a criminal history of
domestic violence, as the current law required a history of
perpetrating domestic violence to invoke the rebuttable
presumption. She reported that rebuttable presumption was
defined as one act which caused serious physical injury, a very
high standard, or more than one act of domestic violence found
by a preponderance of the evidence, 51 percent or more. She
declared that the history of domestic violence was well defined
in the statute. She stated that an accusation of domestic
violence was not enough to invoke the presumption and lose
custody of the children, as there had to be a finding by the
trial court that it was more likely than not, the civil legal
standard, that one incident of serious physical injury or two or
more incidences occurred. She pointed out that this finding
could not happen in an ex parte protection order hearing, but
could only occur after a long term domestic violence hearing, or
in a custody case where both parties had the opportunity to
fully present evidence and testify about the incidences. She
emphasized that courts are hesitant to make findings of domestic
violence in long term protection order cases because of an
understanding to the significance of the findings in a custody
case. She declared that supervised visitation was free in most
areas of Alaska.
CHAIR SEATON pointed out that the proposed bill would next go to
the House Judiciary Standing Committee.
4:04:00 PM
CHAIR SEATON closed public testimony on HB 334 after pointing
out that the above two testifiers had been cut off during the
previous hearing on HB 334 due to technical difficulties.
4:04:32 PM
REPRESENTATIVE TARR reflected that her struggle with the
proposed bill was that the testimony had been in such contrast.
She pointed out that the testimony regarding supervised visits
had ranged from not being available, to very costly at $75 per
hour, to being free in most communities.
4:05:58 PM
REPRESENTATIVE TALERICO moved to adopt the proposed committee
substitute (CS) for HB 334, Version 29-LS1409\N, Bruce, 4/5/16,
as the working draft. There being no objection, Version N was
before the committee.
4:06:38 PM
MS. KOENEMAN stated that the proposed bill was a complicated
issue, and that the sponsor was trying to find a more middle
ground for the best interest of the children. She directed
attention to the original intent language adopted by the
legislature in 1981, which essentially stated that it was in the
best interest for parents to share the rights and
responsibilities of child bearing. While actual physical
custody may not be practical or appropriate in all cases, it was
the intent of the legislature that both parents had the
opportunity to guide and nurture the child and to meet the needs
of the children on an equal footing beyond the considerations of
support or actual custody. She declared that the proposed bill
was seeking to ensure that the needs of the child were met.
CHAIR SEATON, in response to Representative Talerico, asked Ms.
Koeneman to explain the changes made for the proposed committee
substitute, Version N.
4:08:43 PM
MS. KOENEMAN directed attention to Section 1, which removed the
rebuttable presumption language in AS 25.24.150(g). She
reported that Section 2 added language for clear and convincing
evidence to establish a history of perpetrating domestic
violence, as well as the language for the conviction of a crime,
for the judge to use in determination of visitation rights. She
moved on to Section 3 which removed the rebuttable presumption
language. She explained the changes to Section 4 which dealt
with the delegation of visitation rights to a family member by
deployed parents. She relayed that Section 5 was the
modification of a custody or visitation order that removed the
rebuttable presumption. She pointed out that Section 6 removed
the rebuttable presumption language for military families for
the delegation of visitation rights to a family member. She
reported that Section 7 referenced AS 25.24.150(c)(6), which
removed the current language and changed it to "clear and
convincing evidence." She reported that Section 8 contained all
new language, which brought all the custody arrangements back to
AS 25.20.061 if there was any clear and convincing evidence of
domestic violence, and that language was set out in Section 2 of
the proposed bill. She noted that the court could order these
pieces referenced in Section 2. She pointed out that AS
25.24.150(m) added a time frame around the acts of domestic
violence. She shared that AS 25.24.150(n) was in regard to both
parents committing domestic violence, and the award of custody
to the parent least likely to perpetrate domestic violence, or
to a suitable third party as ordered by the court. She moved on
to the changes for Section 9 which repealed the rebuttable
presumption language as well as the language regarding both
parents committing a domestic violence crime. She concluded
with Section 10 which stated that this act only applied to
visitation or custody orders issued on or after the effective
date of the proposed bill.
CHAIR SEATON directed attention to page 5, line 14, and asked if
this language was applicable if this was a child of either one
of the parents.
MS. KOENEMAN replied that the intent was to include step-
children or foster children.
REPRESENTATIVE WOOL suggested that it could read "a child of
either of the two parents."
CHAIR SEATON opined that it would be a child within the family.
4:16:46 PM
LINDA BRUCE, Attorney, Legislative Legal and Research Services,
Legislative Affairs Agency, in response to Chair Seaton, said
that the language currently exists under AS 25.20.061, and that
it could be altered to apply to a child of either of the two
parents.
CHAIR SEATON asked if this would cover foster children in the
home.
MS. BRUCE offered her belief that the alteration would cover
this, although she would review this further and provide a
written response.
4:17:52 PM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System, said that she
would defer to the Legislative Legal and Research Services for
the wording. She stated that definitions of domestic violence
and household member already exist.
4:18:20 PM
REPRESENTATIVE VAZQUEZ offered her belief that there was a
definition of child in the adoption chapter, AS 25.23.240. She
relayed that her problem was that it was very restrictive, and
she pointed out that if the child was not biological, and had
yet to be adopted, they would not be technically covered. She
suggested the use of "household member" or similar.
CHAIR SEATON asked if this could be resolved so to cover
domestic violence within the household.
MS. BRUCE said that she would.
4:19:20 PM
REPRESENTATIVE TARR asked about a circumstance with two adults
and a blended family of biological children from previous
relationships, although the adults were not legally married.
She asked about a time frame for legal custody or visitation
rights by each parent.
MS. MEADE replied that there were grandparent rights and that
she would research the rights for a person with a long standing
relationship with the child.
4:20:53 PM
CHAIR SEATON suggested a letter outlining the questions be sent
to the next committee of referral.
REPRESENTATIVE TARR asked that the circumstances around non-
married couples be addressed.
CHAIR SEATON reiterated that a letter asking House Judiciary
Standing Committee to address certain issues could be sent along
with the proposed bill. He directed attention to page 4, lines
11 - 14, and asked for an explanation.
MS. KOENEMAN expressed her agreement that the language should
also conform to "clear and convincing evidence" or "has
committed a crime" in order for there to be consistency in all
the areas.
MS. MEADE replied to an earlier question by Representative Tarr
about supervised visitation, and its availability in different
communities. She explained that she had also heard different
things. She stated that it was most common for the judge to
seek that the parties agree on a family friend or relative to
supervise the visitation, and only if there was not agreement
would there be the need for professional supervision. She
opined that there was no longer such an entity in Juneau,
although this did vary by community.
REPRESENTATIVE TARR asked about participation in a batterer
intervention program, offering her belief that the only programs
available would be prison based, as the funding for community
based programs was being eliminated. She opined that a judge
could not order this intervention if there was not a program
within fifty miles. She asked if this would impact the ability
for these situations to be resolved favorably.
MS. MEADE, in response to Representative Tarr, offered her
belief that, in Section 9, the presumption was eliminated, hence
there would not be any need for the batterers intervention
program; however, directing attention to page 2, lines 8 - 12,
she relayed that if there was a finding by clear and convincing
evidence of domestic violence or a conviction of domestic
violence, the court may order that the perpetrator go to one of
these programs. She noted that if a program did not exist, she
would not expect that the judge would order this.
4:28:39 PM
CHAIR SEATON, noting that telehealth programs had better results
as they had full attendance, asked if there was a batterers
program offered electronically.
MS. KOENEMAN relayed that there were batterer prevention
programs available on-line, although they were new and not yet
used in the state.
4:29:54 PM
The committee took a brief at-ease.
4:31:21 PM
CHAIR SEATON announced that HB 334 would be held over.