Legislature(2015 - 2016)GRUENBERG 120
04/12/2016 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB200 | |
| SB180 | |
| HB334 | |
| SB174 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 174 | TELECONFERENCED | |
| + | SB 112 | TELECONFERENCED | |
| + | HB 200 | TELECONFERENCED | |
| + | SB 180 | TELECONFERENCED | |
| += | HB 334 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 334-CHILD CUSTODY; DOM. VIOLENCE; CHILD ABUSE
3:00:56 PM
VICE CHAIR KELLER announced that the next order of business
would be HOUSE BILL NO. 334, "An Act relating to visitation and
child custody."
[Before the committee was HB 334, Version 29-LS1409/I.]
3:01:05 PM
REPRESENTATIVE MILLETT moved to adopt HB 334, Version 29-
LS1409/H as the working document. There being no objection,
Version H was before the committee as the working document.
3:01:28 PM
CRYSTAL KOENEMAN, Staff, Representative Cathy Munoz, Alaska
State Legislature, said Version H is the original version of the
bill introduced by Representative Munoz modifying visitation in
child custody statutes. Currently, AS 25.24.150 allows for a
rebuttable presumption to be utilized if there is a history of
domestic violence. She advised that history is defined as one
serious incident, or more than one incident of domestic violence
as identified by the judge. This legislation seeks to change
that language from "a history of domestic violence" to "a
conviction of domestic violence," she said.
VICE CHAIR KELLER opened public testimony.
3:02:50 PM
REBECCA SHIELDS, Executive Director, Kodiak Women's Resource and
Crisis Center, said she has worked in the field of domestic
violence and sexual assault for 25 years, and within her
experiences, has come to learn that domestic violence is an
isolated and secretive crime that happens behind closed doors
and is; therefore, hard to prove in a court of law. Currently,
with the state's budget crisis, its district attorney's office,
law enforcement offices, and courts are suffering from budget
cuts and understaffed with reduced working hours. The threat
most often heard from victims is that their abuser told them if
they leave the relationship, the abusive partner will take the
children, or sue for custody. She related that the threat is
already all too real for victims, because the abuser is
oftentimes the main wage earner in the household with the money
to fight for custody. She said that victims stay or return to
their violent relationship because, in their minds, it is the
only way to keep custody and protect their children. This
legislation will validate the victims' greatest fears, to not be
able to protect their children in court protected or custody
cases, would be realized. The most undeserved victims of
domestic violence incurring the greatest harm are children who
grow up in violent homes. Alaska has 1.4 times the national
rate in child abuse, and this legislation disregards the rights
of children's safety as priority. The consequence of HB 334 is
that children would be sentenced to living in violent households
either as witness to, or direct recipients of, violence. The
Alaska Network on Domestic Violence and Sexual Assault (ANDVSA)
worked hard with the legislature to pass the current rebuttable
presumptive law in 2004 to protect Alaskan children. She
explained that under the law prior to 2004, parents and children
were killed during custody disputes, that current law saved
lives, and the legislature should not mess with that. She
advised she is strongly opposed to HB 334, and urged the
committee to not move the bill forward.
3:06:30 PM
PAUL GRANT, Attorney, said he has practiced law in the domestic
violence and sexual assault field over 25 years. In his
experience, he related, the current law frequently destroys
relationships between children and parents who are not violent,
and have not committed any physical violence or psychological
violence against the children. Under current law, once the
court is forced to impose supervised visitation there are many
barriers to supervised visitation being effective contact. He
explained that those barriers can include, costs, unavailability
of a batterer's programs in remote communities, lack of
qualified supervisors, and any number of problems. He
expressed, current law needs to change, and addressed the
differences between the original bill (Version H), and the
committee substitute (Version I), and noted his personal
preference for Version I. He explained there are two ways to
approach the problem, but they both come down to making sure
that the people subjected to a presumption or supervised
visitation, are people who are causing harm to children. He
said, often there are technical violations, such as an
accidental encounter in a grocery store, which leads to a
violation of a protective order, which then triggers the
presumption, and from there all of the consequences roll
downhill.
3:09:17 PM
MR. GRANT suggested requiring a conviction of the crime before
imposing the presumption, which makes clear this person actually
committed some act of violence that caused harm to the children
of that marriage. The committee substitute approach was
different in that it establishes the highest civil level of
proof, clear and convincing, in order for there to be a history
of domestic violence. In the event there was an act of domestic
violence, the court must take that into consideration in the
custody determination. Or, he said, under the committee
substitute, "conviction of a crime." He explained there are two
ways to get to the history of domestic violence. The most
beneficial aspect of the committee substitute is that it gives
the court discretion.
MR. GRANT pointed to Sec. 2, AS 25.20.061, page 1, lines 13-15
and page 2, lines 1-4, which read:
If visitation is awarded to a parent who the
court finds by clear and convincing evidence has a
history of perpetrating [COMMITTED A CRIME INVOLVING]
domestic violence or been convicted of a crime
involving domestic violence, against the other parent,
[OR] a child, or a domestic living partner [OF THE TWO
PARENTS], within five years preceding the award of
visitation, the court may set conditions for the
visitation, including
MR. GRANT explained that it gives the court a checklist of
[conditions it can set] to protect the child in a case where it
has found domestic violence. He explained that when the court
finds there is domestic violence committed by the accused, there
are then eight different protections the court can put into
place in that particular case. The conditions do not,
necessarily, involve removing the child from the parent,
whereas, under current law the court really has no choice. For
example, he said, if there is a finding of domestic violence,
the conditions can include: supervised visitation; possibility
of a batterer's program if available; alcohol or drug
restrictions; paying the costs of supervised visitation; and a
number of other conditions.
3:12:28 PM
MR. GRANT opined, the most important factor is giving the trial
courts the discretion to make reasoned decisions as to whether
this person is a danger to these children. Under current law,
under the presumption, that [discretion] does not happen. He
explained that the court does not have a choice to determine
whether this person is a danger to these children, and opined
that the court does not want to destroy the relationship between
a child and their parent. He said his preference is taking the
presumption out and making it a clear and convincing finding by
the court, which would then trigger the protections the court
can impose. He pointed out that either version gets the law
moving in the right direction, which is to not destroy
relationships between parents and children in the absence of a
concrete showing of harm to the child involved.
3:14:08 PM
REPRESENTATIVE KREISS-TOMKINS asked how often the rebuttable
presumption has been invoked in these custody cases, in Mr.
Grant's experience.
MR. GRANT opined, it is invoked approximately 10-15 percent of
the time, wherein possibly 20 percent of the time there would be
a couple of incidents of domestic violence when discussing the
entire universe of custody cases. Another problem, he said, is
that due to the way the law is structured, if the parent
contemplating suing for divorce wants to obtain custody of the
children, and that parent is able to convince the court there
were two incidents of domestic violence, then that parent has
immediately put their ball in the five yard line of the other
team. He advised he has often seen the tactic of invoking the
rebuttable presumption used in cases where there is no danger to
the child. The presumption is invoked because it gives that
parent an advantage in the unfolding custody litigation. He
opined that he could not offer a statistical number, other than
it is pretty substantial, but he could say there are a number of
cases in which he has seen the tool applied.
3:16:40 PM
The committee took an at-ease from 3:16 p.m. to 3:17p.m.
3:17:05 PM
VICE CHAIR KELLER advised that Chair LeDoux had returned, but he
would continue as chair through the conclusion of Mr. Grant's
testimony.
REPRESENTATIVE KREISS-TOMKINS asked Mr. Grant, as a family law
attorney, which side of these cases he finds himself on.
MR. GRANT responded that he has represented both parties a
relatively equal amount of time. He pointed out that it is more
common the mother invokes the presumption; however, he has
recently been involved in a couple of cases in which the mother
was the perpetrator. Although, he related, it certainly is not
a gender exclusive phenomenon and he finds himself on both sides
of the issue, and both sides of parents of both genders.
3:18:56 PM
REPRESENTATIVE KREISS-TOMKINS referred to the court finding that
the domestic violence had occurred and the presumption attached
with the notion of a technical violation, and asked how
technical a technical violation can be. He further asked Mr.
Grant to illustrate two technical violations from his prior
cases, how uncommon it can be that someone who, in his view,
does not pose a danger to a child can be found of two
infractions of domestic violence, and the presumption be invoked
upon them.
3:20:01 PM
MR. GRANT offered the example he presented within his written
testimony for the previous committee, and advised that the facts
were modified slightly so the people involved couldn't be
identified. During an argument the father slammed a door in the
house and broke the door frame, and the police were called but
never did anything about that. Although, technically speaking
that is malicious destruction of property or some sort of an
assault. The court found, on request for a short-term
restraining order, that incident constituted enough of a showing
to obtain a short-term restraining order. Subsequently, the
father ran into the mother in the grocery store, and not having
consulted with counsel yet, asked the mother what they were
doing, can't they stop this, and figure out some other way to
work it out. At some point the conversation got a bit heated
and the father finally walked away. The mother called the
police, he was arrested for violating the 20 day restraining
order, supervised visitation followed, and he didn't see his
children for a long time. He pointed out that that is the type
of case that concerns him. An argument can be made that the
father is a perpetrator because he slammed the door during the
argument and the child heard it, and that's domestic violence
that children are exposed to. He opined that no reasonable
person would say that is a situation where a father should lose
his relationship with his children, and that is the type of
issue the bill needs to address in whichever version is taken up
by the committee.
3:22:36 PM
REPRESENTATIVE CLAMAN offered that several of the folks
previously testifying discussed the challenges in domestic
violence cases, and that reporting is a large issue. He pointed
out that this discussion is not the slamming of doors in anger
cases, but rather cases wherein people are physically assaulted
and those children put in danger. He also pointed out, there
are domestic violence orders not resulting in prosecutions for
any number of reasons. Previous testimony indicated that this
legislation makes it harder to reverse the trends in domestic
violence cases if the legislature changes how these domestic
violence orders are managed. He asked how Mr. Grant responds to
that critic of both versions of the bill, not focused on the
slamming of the door scenario where people are potentially
abusing the domestic violence protective order statute. He
asked Mr. Grant how he balances those issues due to the issue of
domestic violence in this state.
3:24:38 PM
MR. GRANT responded that the problem Representative Claman
posited is that it is an "either or" situation, either the
perpetrator gets away with it, or potentially the protections
are abused. He opined, the solution is judicial discretion, the
judge's ability to look down at these parties and relate what he
believes happened, and what should happen to protect the
children or the other spouse. Thereby, giving the judge the
ability to prevent destruction of a parent-child relationship
unnecessarily, and [Version I] does that. Although, he noted,
at the end of the day there probably will be hard cases where a
choice has to be made as to the unnecessary destruction of
parent-child relationships. The criminal system is set up to
provide those kinds of protections, he remarked, and whether it
does so, or not, he couldn't speak to how often prosecutors roll
over on a case that should be prosecuted. He suggested there
are other things to do about that, such as educating
prosecutors, make referrals to prosecution easier, and other
ways to approach that. He conceded there is a tension there,
and [Version I] probably addresses that better by making it
either a conviction of a domestic violence, or a finding of
domestic violence.
[VICE CHAIR KELLER passed the gavel back to Chair LeDoux.]
3:27:44 PM
The committee took a short at ease.
3:27:57 PM
SARALYN TABACHNICK, Executive Director, Aiding Women in Abuse
and Rape Emergencies (AWARE), said she has worked at the Aiding
Women in Abuse and Rape Emergencies (AWARE) Center for 29 years,
and during that time has worked with children who have
experienced domestic violence or sexual abuse. She clarified
that a slammed door doesn't, necessarily, mean that these people
are a domestic violence offender. She pointed out that she does
not want to minimize what domestic violence is, and described it
as an ongoing pattern of behavior wherein people live in fear of
an intimate partner in their home abusing power and control over
them. She offered that children live in fear and slamming doors
can be very fearful, it's not an isolated incident. She
clarified, this is not about destroying relationships between
parents and children, it's about keeping children safer, and the
legislation does not keep children safer. In order for a
conviction to occur, someone has to call the police, and in
order for someone to call the police, they have to not be afraid
of calling the police and not be afraid of getting the
perpetrator in trouble. The [victims] must be willing to take
that step. She continued that there has to be an arrest and a
conviction. It is uncommon that there are consistent
convictions in domestic violence, because quite often charges
are pled down to disorderly conduct, and then there is no
domestic violence.
3:30:51 PM
MS. TABACHNICK related that under current law, rebuttable
presumption requires a judge to find a history of domestic
violence. She referred to previous testimony as to leaving it
to the judge's discretion, and advised that current law protects
Alaska's children exposed to domestic violence by requiring
courts to consider that. The presumption is rebuttable, which
means an accused domestic violence offender has the opportunity
to come forward and contest it. She related that knowing all of
this, the rebuttable presumption law puts faith in Alaska's
judges to rely on collateral sources to determine a finding of
domestic violence. In the event a history is found, the court
has discretion to decide whether unsupervised, or supervised,
visitation is best, and require the perpetrating parent to
participate in some sort of programming. She explained that
this does not mean an offending parent can't see their children,
and when people say the father hasn't seen his children for a
year, that is not because the court didn't allow it, she
remarked. She stated, it means the parent made a choice to not
see their children, because the court requires [certain'
conditions to keep a child safe, generally a supervisor being
present. She pointed out that this has also been helpful in
assisting parents to get help, and Alaskan judges do not take
that responsibility lightly. She urged the committee to let
judge's do what they do best and what Alaskans trust them to do,
look at all of the evidence, and make an informed decision about
domestic violence in a given relationship. Current law is based
upon language from a model code drafted by the National Council
on Juvenile and Family Court Judges. She said that Alaska is
one of twenty-four states to have a rebuttable presumption
against giving custody to parents with a history of domestic
violence, and that is something to be proud of, rather than
looking to change.
3:32:56 PM
MS. TABACHNICK advised, more often than a rebuttable presumption
protecting children, AWARE sees children ordered by the court to
spend unsupervised time with an abusive parent, a parent they
have seen be hurtful to their mothers, a parent they are afraid
of, and a parent who may be directly abusive to them as well.
More often than a rebuttable presumption protecting children,
AWARE hears mothers trying to protect their children, mothers
whose hearts are wrenched put as they send their crying and
pleading children to be with a parent they are terrified of.
Then, she stressed, when their children return, they have
nightmares, are angry or anxious or bed wetting for days until
they are able to be soothed and calmed only to have this pattern
repeated the next weekend. She said that Alaska is raising
children who are learning that their needs and feelings don't
matter, that their boundaries are not to be respected.
Therefore, she said, they learn that they are not allowed to
have boundaries and thus have no skills in either setting
boundaries or believing they have rights to boundaries. Alaska,
as a society, set up the most vulnerable children to be harmed
again and again. She related that she finds HB 334 to be one of
the most disheartening bills she has ever spoken to in her 27
years at AWARE. If anything, Alaska needs laws that further
protect children, not laws that make it more difficult to keep
them safe, she related.
3:34:58 PM
REPRESENTATIVE KREISS-TOMKINS asked what kind of supervised
visitation programs exist in a community such as Juneau, how
available are those kinds of programs in different parts of
Alaska, and what cost would they have to the supervised parent.
He asked her to provide her perspective on the realities of
supervised visitation.
MS. TABACHNICK responded, there is one local agency offering
supervised visits, and she was unsure whether other venues were
available or arrangements could be made with the court in terms
of finding a supervisor that is agreeable to all. She advised
that when she hears about parents not seeing their children for
a year, she stated that it is not because they couldn't find a
supervisor or couldn't afford to pay for one, it is because they
don't want to be told by the court or anyone that there has to
be a supervisor, and they put that in front of their
relationship with their children. She said that is also not
unusual to see when domestic violence has occurred and the
problem is not the presumption. She remarked that she hoped
people would look more at justice than [using the rebuttable
presumption as a tool and] winning.
3:37:51 PM
REPRESENTATIVE KREISS-TOMKINS surmised that in situations Ms.
Tabachnick has seen, indignation and righteousness is a barrier
for the parent seeing the child and not necessarily the external
barriers, such as cost or lack of services.
MS. TABACHNICK agreed.
REPRESENTATIVE CLAMAN clarified that Mr. Grant said he had
considered using it as a tool but never actually done so,
although he may have misheard him.
MS. TABACHNICK thanked Representative Claman because she is
happy and relieved to be corrected on that.
REPRESENTATIVE CLAMAN related that doesn't mean that others, not
represented, may not use it in that way. He referred people who
may use slamming a door as a basis for a domestic violence
petition, and the court may or may not approve the ex parte
petition. He said those are contrasted with cases involving
horrific instances of domestic violence that anyone would agree
was awful by anyone's approach. He asked whether she has seen
cases where it appears someone is using a single incident to
push forward their domestic violence petition. He offered that
he was trying to get the breadth of her experience in what she
sees coming into the shelters.
MS. TABACHNICK answered that she does not do a lot of direct
service, and she does not believe AWARE receives many people
coming in just to look for a protection order, because the
AWARE center looks for certain elements necessary to receive a
protection order. Therefore, AWARE is looking for those
elements and not looking to abuse or use the system, but it may
ask someone why they are coming for AWARE's services if the
issue is not one that puts them in fear.
CHAIR LEDOUX advised that Fred Triem is next and pointed out
that she normally does not allow people to testify under public
testimony twice, and she is making an exception in this case
because the bill being heard today is different than the bill
heard a couple of days ago.
3:41:15 PM
FRED TRIEM, Attorney, advised that the task before the committee
is a task of legislative drafting, and that it is better to use
a precise word or term in preference to a vague, amorphous, or
uncertain term. He explained, this bill does a good job of
replacing vague, amorphous, and imprecise terms with exact
precise language. For example, under Version H, page 1, line 5,
and the phrase "committed" as in committed a crime, is replaced
with the phrase "been convicted of a crime." He pointed out
that when reviewing the second, third, and fourth pages of the
bill this legislation is improved in eight different places by
replacing the vague phrase of "a history of perpetrating" with a
precise phrase "convicted." He described this as the best bill
he has seen because it will improve Alaska's law, it will save
the court system a lot of time, and it will eliminate a lot of
expensive hearings.
MR. TRIEM referred to judicial discretion, and pointed out that
the problem is that it requires time, requires a hearing, and a
trial. The language of the bill eliminates the need for
judicial discretion because discretion took place in an earlier
proceeding wherein a defendant had their trial and exercised
their due process rights. He remarked, this bill will not give
free rein to child abuses as it simply protects Alaska's
judicial system, the people involved in domestic violence,
streamlines the process by requiring precise language, and
eliminates time consuming and expensive proceedings. Given the
late date of the session, he suggested that a good bill now is
better than a perfect bill weeks and weeks from now.
3:46:23 PM
REPRESENTATIVE KREISS-TOMKINS asked whether he supports changing
the eighth criteria listed on page 5, lines [1-7], to a
conviction of drug use or drug abuse to similarly achieve a
precise and clear definition that the court does not need to
exercise discretion.
MR. TRIEM responded, he is not advocating a court should not use
discretion. The language contained in Sec. 8, addresses the
topic of different programs, some of which are not available in
small towns. He stated he is not advocating doing away with
discretion for a court to determine whether the defendant is
abusing alcohol or psychoactive drugs. He reiterated that those
are the kinds of conduct that have already been adjudicated and
determined in a fair judicial proceeding. If a defendant has
been convicted of abusing alcohol or using psychoactive drugs, a
person can go to CourtView to determine whether there has been a
conviction. He described it as a precise process wherein a
determination is easily made, as opposed to having days and days
of hearings to determine whether the person does, or does not,
have a history of this misconduct.
3:48:19 PM
REPRESENTATIVE KREISS-TOMKINS surmised that Mr. Triem is saying
he wants to see a conviction of domestic violence, and asked why
he does not want to see a conviction for drug possession or drug
use also.
MR. TRIEM replied he is not saying he does not want to see
convictions. He explained that a conviction of misconduct is a
result of a judicial process in which the defendant has had an
opportunity to present his defenses in an orderly process,
usually with a jury trial. Whereas, these cases that go before
district courts and superior courts without a jury do not afford
the accused the full range of their constitutional protections.
In his experience, it is almost invariably a male who is being
excluded by this process, because it is almost always men who
lose custody of their children because they are accused of
having a history of domestic violence, he said.
3:49:45 PM
MS. KOENEMAN pointed to Representative Kreiss-Tomkins's question
regarding substance abuse, and whether or not there is support
for conviction. She offered, the language in the bill, both in
current statute and Version H, doesn't contain a rebuttable
presumption language regarding substance abuse, like it does
with domestic violence. There is specific language, "if there
is a history, they are guilty until proven innocent," which is
why the sponsor hasn't addressed that issue, or why there isn't
clear and convincing evidence regarding substance abuse. She
explained that it is a factor the judge can consider, but there
is not an automatic loss of the person's children unless they
complete a batterer's program or alcohol treatment abuse
program.
MS. KOENEMAN pointed to a question related to supervised
visitations. She explained that she has found seven programs
across the entire state for supervised visitation. The cost for
one program in Palmer, is a $35 orientation fee and $50 per
hour. There was a 2011 Alaska Judicial Council report on the
batterer's intervention programs that went through some of the
stakeholder observations. She referred to the report and
advised she would get copies of the report should members so
desire. Ms. Koeneman said that page 6 of "that report" talks
about barriers to referral, enrollment, and completion of the
batterer's intervention programs, which she said states,
"enrollment programs was often hindered by a lack of
transportation, lack of money to pay for programs, and defendant
transiency." She said the report further lists suggestions,
such as "examine the need for more programs statewide; look into
ways to use technology to broaden the programs to rural
locations, to women, and to ease transportation difficulties;
examine ways to lower program costs, and to communicate payment
options to offenders at the time of the referral; develop state
protocols for transferring offenders from [Batterers'
Intervention Program] BIPs to another in a different location;
consider ways to promote batterer's intervention programs
completion by teaching offenders life skills as part of the BIP
course prior to entry."
MS. KOENEMAN pointed to the comment there are people attending
batterer's intervention programs, or people who don't complete
it, or people who choose not to. She opined there are many
other reasons why, and she said, "I don't think it's just a
sheer, 'I don't want to see my kids and I wanna fight,' you
know, and 'I don't think I need to go.'" She opined there are
true reasons as to why people are unable to complete those
programs, as outlined by the Alaska Judicial Council.
3:54:02 PM
REPRESENTATIVE KELLER moved to report HB 334, Version 29-
LS1409/H out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection, HB 334
moved from the House Judiciary Standing Committee.