Legislature(2003 - 2004)
04/27/2004 08:15 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSHB 385(JUD)-AWARDING CHILD CUSTODY
REPRESENTATIVE LESIL McGUIRE, sponsor of HB 385, gave the
following explanation of the measure.
Just to let you know that whenever the words 'domestic
violence' come into play, I think it raises
everybody's awareness and we get on notice and we want
to figure out what the bill says. In the House, it
passed out just fine through all of the committees and
through the floor but leading into the floor vote
itself, there were a couple of members that came to
me, similar to it sounds like what is going on here
where they read the title, looked at it, had an
understanding of it that was inaccurate, and once I
was able to explain what the bill did, it passed with
flying colors. So, let me try to walk you through how
this plays out.
Obviously, the issue of awarding child custody is a
very sensitive issue and it's something that most of
us have had a friend or a relative or a constituent
that has dealt with a child custody situation that
hasn't gone well or we've at least heard about one
where the perception has been that a judge unfairly
gave sole custody to one or split joint custody when
they shouldn't have.
Mr. Chairman, as you well know, similar to a divorce,
a child custody situation, when parties come away, I
think, everybody feels like they lost most of the
time. So the judge is in an interesting position in
awarding joint custody. This bill deals with the
factors that should be considered when awarding joint
custody. Obviously, Mr. Chairman, I support and I
think most people do support the notion that when the
unfortunate situation occurs where a family can't stay
united, that to the very best of everybody's ability,
the mother and the father ought to split the custody
of that child and have the opportunity for the child,
despite the fact that they don't have their nuclear
family together, to have an opportunity to have a
father and a mother growing up. So that is at the
heart of and the root of my philosophy and what I
believe in and so this bill is not any attempt to go
against that philosophy.
What this bill does is, Mr. Chairman, there are 23
other states that have adopted friendly parent
legislation. This was brought to me by a constituent.
She's the president of the PTA in my district, Paige
Hopson, and she should be on the line, and her
attorney Alan Bailey, who is a family law attorney. I
think he's traveling today and can't be on the line
but has testified in the past and I can summarize his
interest. He's a family law practitioner who works in
this area and worked with Paige on this bill. What's
been happening in cases where there is domestic
violence, and when I'm talking about domestic violence
I want to make sure that the members understand - and
we have one amendment today that should be before you
that even clarifies this more severely, is that we're
talking about a case where they have caused serious
bodily injury - this is not an allegation, this is not
a pushing or shoving, this is not a you yelled at me
and that made me feel bad. This is a serious bodily
injury and it is a history. You have to have a history
of perpetuating it and once you see the amendment
today it will make it clear once again that in a
second part of the bill, page 3, line 31, we want to
repeat the words 'a history of perpetuating' so that
throughout, what a judge is looking for, Mr. Chairman,
is serious bodily injury, a history of perpetuating
domestic violence. And in those cases, prior to
friendly parent legislation throughout the nation, and
this is an unbelievable thing but stay with me,
sometimes the person who has been a victim of domestic
violence is not awarded partial custody.
How this happens is that under the existing statutes
in our state and in others, if the members will look
to ... page 2, line 22, everything in all caps and
parentheses will show you the way the statute used to
read. It used to say as one of the factors for
consideration about shared custody, we want to know
which parent is more likely to encourage frequent and
continuing contact with the other parent. That's one
thing. Then if members would look to page 3, lines 17
through 20, the law used to say 'the desire and
ability of each parent to allow an open and loving and
frequent relationship between the child and the other
parent.' Mr. Chairman, if you have been the victim of
domestic violence, if you have been the recipient of
serious bodily injury on a repetitive, perpetual
basis, it is unlikely that you would want to have a
close and loving contact with that person that has
been your batterer. That is the way that it plays out,
and so the child ends up sort of in between the two
and we don't want that to happen. But in awarding
custody, what has happened, and there are statistics
nationwide that in roughly 70 percent of those cases,
it is the batterer that gets the custody of the child
because they're the ones that say hey, I will
encourage this close and loving contact, I don't have
any problem having frequent contact with the other
parent - no big deal to me, everything's fine. The
person who has been battered is saying I am
uncomfortable making that commitment to have close
loving contact with the other parent and they end up
losing the ability to have custody.
So what we're trying to do in this bill is to level
the playing field and to simply say that, first of
all, that will be one factor that the judge is still
considering so it is still important - if you look on
page 2 - that you're looking at the needs of the
child, the stability of the home environment, the
education, the advantage of keeping the child in the
community and all these other things, but we're also
saying that if there has been this serious bodily
injury and this history of perpetuating domestic
violence, that there will be a presumption that goes
in favor of the person that has been abused.
Now I might add, Mr. Chairman, I worked very closely
with Max Gruenberg on this, and Les Gara, who are the
minority members in my committee and Max practices in
this area. The only reason I bring it up is that there
are always places where you can make a bill stronger
and sort of weaker. I want to call members' attention
to the presumption itself on page 4 - we say that the
presumption itself can be overcome by a preponderance
of the evidence. A preponderance of the evidence is
the lowest possible standard.... There are other
states that have clear and convincing evidence, which
is the higher standard. We have the preponderance of
the evidence standard, which is 51 percent. And what
we're saying is hey, if there's evidence of serious
bodily injury and a history of perpetuating it, we're
not going to let this be used against the person who
was battered and the presumption can be overcome,
though, again by a preponderance of the evidence and
all you have to do is successfully complete an
intervention program for batterers. That's all you
have to do. We're not saying that you will not get
custody of your child, as some people have
misunderstood this bill. We are not saying that
because you have been involved in domestic violence
you'll never be a father or a mother and never have
the right to see your child. So I just want to point
those things out.
Once the bill was explained to people on the floor, it
had wide bipartisan support on the floor and passed
the House amended. I'd be happy to answer any
questions that people have and sorry if I made it even
more confusing.
SENATOR OGAN said he likes the fact that the bill allows for an
intervention program for batterers because they are generally
left untreated. He noted that the language on page 4, lines 9-10
says the parent does not engage in substance abuse but often
"birds of a feather flock together" and questioned what the
court would do if both parents engage in substance abuse.
REPRESENTATIVE McGUIRE remarked that not all 23 states' laws
have that intervention language and she believes that is very
important. She said she does not want this bill to be used to
permanently prevent a parent from having a relationship with
his/her child. Second, she pointed out that a provision on page
4, line 15, addresses the sad situation where both parents have
a history of perpetuating domestic violence. The first option,
in that case, is to award sole legal and physical custody to the
parent who is less likely to continue to perpetrate domestic
violence and require that parent to complete a treatment
program. The second option is to award sole legal or physical
custody, or both, to a third person. She said what is most
important about this bill is that it gives the court many tools
and discretion. She added that the first option might not be
palatable to some people, but that is for judicial discretion
and there must be a nod toward keeping a child with his or her
natural family, when safe.
SENATOR OGAN maintained that a parent with a mental illness can
be a good parent.
REPRESENTATIVE McGUIRE explained that to get to the section
Senator Ogan is referring to, the court must determine serious
bodily injury and a history of perpetrating violence.
CHAIR SEEKINS added that is assuming that a person is still in a
custody battle and the court must make the decision.
REPRESENTATIVE McGUIRE agreed and said the mental illness would
only come into play if it affects that person's parenting
ability.
CHAIR SEEKINS moved to adopt Amendment 1, which reads as
follows:
A M E N D M E N T 1
(Page 3, Line 31 - Page 4, Line 1)
DELETE "committed an act of"
INSERT "a history of perpetrating"
Rationale: In (h) below (Page 4, lines 4-7) "A history
of perpetrating domestic violence" is given specific
meaning. This amendment would make the language
consistent in the two sections.
SENATOR FRENCH objected for the purpose of discussion.
CHAIR SEEKINS felt that Amendment 1 makes subsection (g) conform
with the remainder of the section.
REPRESENTATIVE McGUIRE said that is exactly correct. She said
the intent is to make sure that when this process is being
abused, there is a documented history of it. It is not to apply
to a single allegation.
CHAIR SEEKINS said it almost seems predictable in certain
contested divorce cases that both parties rush to file a
[domestic violence and/or sexual abuse of a minor] complaint
when there is no basis in fact for the allegation. However, one
complaint based on a documented history of domestic violence
could lead to this conclusion.
REPRESENTATIVE McGUIRE agreed and clarified that she meant that
the two be read together. She explained:
So, we've always meant for it to be more than an act
but when we looked back at it we realized it wasn't
consistent in both parts so it's just to reaffirm that
basic public policy that we had before and it's just
what you said.
CHAIR SEEKINS said the committee has heard testimony that
complaints of domestic violence can be used as a weapon and not
for the best interests of the child.
REPRESENTATIVE McGUIRE clarified:
So Mr. Chairman, what we're doing now is we're saying
that - and these are difficult subjects to talk about
because there will be some people that would say to
you yea, the incidents of false complaints of domestic
violence are rare and so on, but I think we all
understand what we're talking about, which is that it
can be used that way. What this bill is doing now is
it is still asking that the best interest of the child
be considered. It's also asking that the court
consider a variety of other factors but it's simply
saying now that the fact that someone has been a
recipient of serious bodily injury, that there's a
history of domestic violence, it is a thing that we
want the courts to consider and....
CHAIR SEEKINS interjected, "All of which is meant to try to
serve the best interests of the child."
REPRESENTATIVE McGUIRE said that is the point. She noted the
victim of serious bodily injury would not want that abuse to be
used against him or her in a custody battle but the root of the
issue is what is best for the child. She pointed out the
evidence is overwhelming that in a household where domestic
violence occurred, the child is likely to have been abused as
well. About 10 years ago, the legislature acknowledged the fact
that witnessing domestic violence has psychological implications
for children. She noted the judge would have to consider a list
of factors and if there is a history of domestic violence and
serious bodily injury, there is the presumption that can be
overcome by a preponderance of the evidence.
CHAIR SEEKINS noted that a loving parent may not necessarily be
a good parent and asked how to balance other negative habits or
conditions that may be present.
REPRESENTATIVE McGUIRE said the original language - the desire
of each parent to provide a "loving, frequent relationship
between the child" was an odd standard. She tried to put a more
legally defensible and neutral standard into the standard so
used "the willingness and ability of each parent to facilitate
and encourage a close and continuing relationship...." She
pointed to the language on line 20 and said that gets to the
root of Chair Seekins' concern, that being that a history of
domestic violence will endanger the health or safety of the
child. However, she wants to keep that as one of the factors for
the court to determine because it is for the benefit of the
child.
SENATOR FRENCH thought the bill strikes a good balance between
the needs of both parties regarding child custody issues. He
said in his experience, he has not found that most people use
the filing of a domestic violence complaint as a weapon in
custody battles. He finds legal professionals, for the most
part, to be an ethical bunch. He then referred to the phrase
"serious bodily injury" on page 4 and asked why she chose that
phrase rather than "serious physical injury" and whether they
are the same in her mind.
CHAIR SEEKINS asked that Amendment 1 be addressed first.
SENATOR FRENCH withdrew his objection to the adoption of
Amendment 1, therefore it was adopted.
REPRESENTATIVE McGUIRE said Representative Gruenberg suggested
that phrase and that she would be amenable to changing the
phrase to "serious physical injury". She meant the two to be the
same. She then suggested including the definition of that phrase
to improve the bill.
SENATOR FRENCH noted that because the phrase "serious physical
injury" has been used in the criminal statutes for decades, he
would move to change the word "bodily" on line 6 of page 4 to
"physical" [Amendment 2].
CHAIR SEEKINS announced that without objection, Amendment 2 was
adopted.
MS. PAIGE HODSIN, representing herself, told members she could
provide them with the results of a 1988 American Bar Association
study of 12 states in which 9,000 custody cases were reviewed.
Less than 2 percent of those cases involved allegations of
sexual abuse so the false allegation concern is low incidence.
She then explained that she is a divorced single mother of two
children and is a court-appointed special advocate for abused
and neglected children, PTA president and a domestic violence
survivor. She was in a verbally and physically abusive marriage
for 11 years; most of the abuse occurred in front of her
children, which is what the bill addresses. As her daughter grew
older, she began to see the impact of witnessing abuse on her
more clearly. As her daughter grew older, the father became
abusive of her as well and she felt it was her responsibility to
protect her children's well being and serve as an appropriate
role model. Her ex-husband had threatened to use whatever action
necessary to prove her to be an unfit mother and take custody of
the children, who she would never see again. During the custody
battle, she found that her role had been turned upside down. Her
common sense told her that she was responsible for getting out
of the marriage to protect the children, yet she was pressured
to not raise those concerns during the custody battle. Some of
the statutes resulted in equal blame for the violence. Her
children's fears about their father's abuse were pathologized
and the court strongly implied that if she did not accept a
shared physical custody arrangement, the court would give full
custody to the father.
MS. HODSIN said as time went on, she found the toll on her
daughter of unsupervised visitation with the father became
enormous. She would scream, kick and cry when taken from her
home and had trouble at school. Her daughter reached out to many
trusted adults yet the court failed to respond. Her son, a
toddler, would be returned dehydrated and unclean, and once with
a black eye. She went through two full custody trials and five
years of litigation. She now has full legal and physical custody
of her children but her ex-husband still has unsupervised
visitation rights. Ultimately, she found her case to be
representative of systemic failure in the court system to
protect domestic violence victims and their children. She found
women and children all over the country with similar experiences
and she found an alarming number of abusive parents being
awarded full custody of their children. She said HB 385 is the
result of almost three years of researching and networking to
find the best statutes in the country and it is strongly
supported by many organizations involved with the protection of
children. It brings Alaska's child custody statutes into line
with what 11 states are doing. Congress and the National Council
of Juvenile Court Justices recommend it. It also brings Alaska
statute into line with voluminous research on the impact of
domestic violence on children. She thanked members for
considering this legislation.
MS. CHRISTINE PATE, Alaska Network on Domestic Violence and
Sexual Assault, stated support for CSHB 385(JUD)am.
CHAIR SEEKINS announced that public testimony was closed.
SENATOR OGAN moved SCS CSHB 385(JUD) from committee with
individual recommendations and its attached fiscal notes.
CHAIR SEEKINS announced that without objection, the motion
carried. He then announced his intention to begin Wednesday's
meeting promptly at 8:00 a.m. and adjourned the meeting at 10:01
a.m.
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