Legislature(1995 - 1996)
04/22/1995 11:12 AM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
Number 400
SSSB 27 - MISC. GRANDPARENT VISITATION RIGHTS
JAMES ARMSTRONG, Senate Researcher to Senator Dave Donley, bill
sponsor, gave the sponsor statement for SSSB 27. SSSB 27 would
give grandparents the legal status to petition the court for
visitation rights with their grandchildren. Under existing law,
the court can grant an order that provides for visitation by
grandparents in divorce and separation proceedings in cases where
one or both of the parents have died. Grandparents themselves are
not allowed to initiate such an action. SSSB 27 would give
grandparents this standing to ask for those visitation rights if
they were not initially provided for by the court. SSSB 27 does
not require that visitation rights be given. It is completely up
to the discretion of the judge, with the best interests of the
child being the primary factor for granting such rights.
REPRESENTATIVE CYNTHIA TOOHEY said she had been contacted by Lauree
Hugonin from Alaska Network on Domestic Violence and Sexual
Assault, and her concern was that the judge is not going to be
filled in on all information pertaining to violence committed by
the parents. The judge would possibly be granting these visitation
rights without having the knowledge. That was a concern raised,
but Representative Toohey did not believe that to be true. She
believed that in determining the best interests of the child, the
court should consider all relevant factors. She felt the bill was
fine.
MR. ARMSTRONG said that the terms for the best interests of the
child is laid out in AS 25.24.150, Section (c)(9), which also lists
other factors that the court finds pertinent. The judge does not
have to grant the privilege.
SHERRIE GOLL, read the position paper written by Lauree Hugonin,
Executive Director of Alaska Network on Domestic Violence and
Sexual Assault, into the record:
"The Network supports the ability of grandparents or other
relatives to keep healthy, established, ongoing relationships with
children. We support the goal of allowing grandparents and others
to petition for visitation. We do have a concern for children's
safety when the perpetrator of domestic violence has access to the
child during grandparent visitation. Often in domestic violence
situations, the parents of the perpetrator, the grandparents, and
other family members provide opportunities for him to see the
children while the children are with them. This happens in many
cases even when the judge has ruled that the perpetrator is not to
have custody of or visitation with the children. Sometimes this
access allows the perpetrator to get the children, take them away
from their grandparents, and use them against the victim.
"The grandparents can also be at risk if the perpetrator perceives
them as colluding with the victim or with the court system. Many
people, judges included, perceive domestic violence as a private
matter between the perpetrator and the victim. Domestic violence
impacts the children and the extended family members as well, and
can put them all in danger.
"The Network's concern applies to the first section of the bill
where it says the court shall provide for visitation if it is in
the best interests of the child. In determining the best interests
of the child for custody, the court uses a list of criteria found
in AS 25.24.150(c). Item 7 states that in determining the best
interests of the child, the court shall consider any evidence of
domestic violence, child abuse, or child neglect in the proposed
custodial household, or history of violence between the parents.
"The Network believes in determining the best interests of the
child for visitation, the court should give heightened judicial
scrutiny to AS 25.24.150 (c)(7). Heightened scrutiny of this
particular item will add a layer of protection for children and
cause judges to carefully explore the potential for further danger
to the child."
MS. GOLL explained that the Network is concerned that this bill is
saying that the court SHALL, unless they can find that to do so
would not be in the best interests of the child. She is suggesting
that in cases where in the original custody decision, the court has
had to refer to AS 25.24.150(c)(7), because domestic violence or
child abuse was an issue in the original custody decision. Then
when grandparents or other persons are petitioning for visitation,
the court needs to add heightened scrutiny to the case, based on
the actual problems that people have while other people have had
visitation with the children and allow the person who is not
permitted to have visitation with the children to have access to
the children in that way.
REPRESENTATIVE TOOHEY asked if this had been discussed with Senator
Donley.
MS. GOLL answered that yes, as James inferred, Lauree did have an
opportunity to speak to James and to the senator, and the senator
did not agree with the logic of this, but she still wished the
committee to understand her concerns.
REPRESENTATIVE TOOHEY Ms. Goll if she did not believe the words "in
the best interests of the child" would be sufficient.
MS. GOLL answered that no, she did not. When changes were made to
divorce and dissolution laws several years ago, one of the things
that was introduced into dissolutions was the concept of heightened
scrutiny. Custody and divorce cases take up a lot of court time.
The court could place some parameters on the visitation rights in
order to protect the child better in situations where domestic
violence or child abuse has been an issue in the original custody
decision.
CHAIRMAN PORTER asked Ms. Goll if what she was saying is that on
page 1, she would suggest that they add something to the effect,
"In determining the best interests of the child, the court shall
consider all relevant factors including those factors enumerated in
AS 25.24.150(c) with heightened scrutiny of (c)(7)."
MS. GOLL answered that was the basic concept. She would have it
say, "If in the custody decision, Item (c)(7) was an issue, then
the court would give heightened scrutiny to this determination
about the other person's visitation."
Number 550
CHAIRMAN PORTER said they could consider that when looking at
amendments.
MARLIS SCHMID, testified via teleconference. She is the
grandmother of two children, ages eight and ten. The children want
to see her but are not allowed since the stepfather is in the life
of her daughter. The stepfather adopted the children a year after
her daughter married him, and that she can prove was fraud. The
children's father has always been in contact with the children on
her telephone. She had raised these children and had them 70
percent of the time, because her daughter was working. The
children's father called her number, since the telephone was hung
up on him if her daughter was home, by her (at that time)
boyfriend. Her daughter went to court, claiming that the father
had no contact with the children. She asked her daughter at that
time, "Tanya, how can you say that? You know this is not true."
She said she did not want to hear about it. The father had always
been in contact with the children, but her daughter did not want to
hear about it. That is how the stepfather was allowed to adopt the
children. She could not locate the father at the time before the
adoption was final. She is being punished now. It has been two
years in June since she has been allowed to see her grandchildren.
The father always stayed in touch with his children. He wanted to
see them. She kept her mouth shut. He came up from Oregon and she
took the children to Soldotna to spend a week with their father,
and she was there too. When she brought the children home,
(indisc.) her own daughter came to her house and beat the heck out
of her. Ever since then, she is being punished not to see the
children. She has had the children overnight once. She is not
even allowed to have phone contact. She feels that the children
are being verbally abused by their stepfather. They hear her voice
on the record-a-phone, but are not allowed to pick up the phone and
talk to her. He laughs at them instead, and says, "Ha Ha, what are
you going to do about it?" This kind of abuse is constant. She
told them to tell her mother, and they say they do, but she tells
them she does not want to hear about it. Her court order has been
temporarily denied, and she cannot see her grandchildren. Her
contact with them is limited to the telephone. She does not know
what to do anymore, and hopes the Legislature can help her. Her
grandchildren need to see her, she raised them and they know they
are her number one.
Number 665
CHAIRMAN PORTER thought if this bill were passed into law, she
would have the opportunity, not a guarantee, to visit her
grandchildren. If they are now out of state, that would probably
further complicate it, but, this bill certainly would not hurt.
He then asked Mr. Armstrong about Section 1, which seems to set up
a standard of "in the best interests". Section 2 adds that the
grandparent has established or attempted to established ongoing
personal contact, and "in the best interests."
MR. ARMSTRONG stated that currently the judge has the authority to
put a qualifier on it, in Section 9, where it says, "This parent
has committed domestic violence or assault." The judge can look at
other pertinent information, other factors.
REPRESENTATIVE CON BUNDE assumed a judge would be wise enough to
look at the whole record before determining what is in the best
interests of the child.
CHAIRMAN PORTER asked about Section (b) on page 2, which adds to
the proceedings that a grandparent may petition to join the
adoption. Are you assuming the standards are going to be the same
for the judge's determination during that proceeding as they were
in the divorce proceedings?
MR. ARMSTRONG answered that it sort of gives a general provision in
other states and judging by the way section (2) was explained to
him, Chairman Porter's assumption would be correct. Section 3 adds
dissolutions.
CHAIRMAN PORTER said he would like to ask the Senator about the
adoption hearing, which is a new addition, but the Senator had to
step out. He asked Mr. Armstrong if the established standards for
a judge's decision in grandparent rights for divorces and custody
hearings attach to adoption procedures?
MR. ARMSTRONG answered that it seems to read that way, but he could
not say for sure.
Number 740
CHAIRMAN PORTER said that Subsection (b) is the one that adds the
ability to intercede in an adoption procedure, and his concern is
that unless we specifically mention it, that the standards to be
used by the court to establish the best interests of the child, are
not necessarily there.
REPRESENTATIVE FINKELSTEIN understood Subsection (b) as just a
limitation, not adding anything additional, but just to say that
you cannot go and petition if you have already tried to request the
court to do it previously, you cannot go and do it again, unless
there has been a change in circumstances.
CHAIRMAN PORTER clarified that Section 1 deals only with custody
determinations. Is an adoption a custody determination?
REPRESENTATIVE CON BUNDE said indeed it talks about relating to
child custody and relating to adoption. That lead him to believe
that they are two separate things.
MR. ARMSTRONG said that in AS 25.24.150, is your concern as to
whether there is a "best interests of the child" clause?
CHAIRMAN PORTER answered yes.
MR. ARMSTRONG assured him that AS 24.25.150 contains the whole list
of what the judge should look at in determining the "best interests
of the child."
CHAIRMAN PORTER'S concern was that those were separated by an "or."
That is the problem. He stated the committee would set this aside,
and ask the Senator about that, and then come back to SSSB 27
before the meeting ends.
MR. ARMSTRONG agreed to do that.
CHAIRMAN PORTER noted that the language in Section 1 allows a
grandparent or other person to intercede. He wondered what was
implied by the other person, but this "other person" language does
not follow into the other section. Is that intentional?
MR. ARMSTRONG asked if he was referring to Section 2.
CHAIRMAN PORTER answered yes. Getting back to the concern about
domestic violence situations, he did not feel it would be offensive
to the bill to add that language.
REPRESENTATIVE CYNTHIA TOOHEY did not think so either.
CHAIRMAN PORTER suggested on line 9, after AS 25.24.150 (c) that an
amendment could be made to eliminate the period and add "with
heightened scrutiny of (c)(7) if appropriate."
MR. ARMSTRONG noted that he did have an amendment that addresses
those concerns.
CHAIRMAN PORTER asked Mr. Armstrong to first go get the answers to
those two questions, and then the committee could deal with the
amendment when Mr. Armstrong returned.
Number 650
SSSB 27 - MISC. GRANDPARENT VISITATION RIGHTS (CONTINUED)
CHAIRMAN PORTER held the bill for subcommittee referral. He then
announced that they would continue the hearing on SSSB 27.
SENATOR DAVE DONLEY, bill sponsor, came forward to address the
committee's concerns. He understood there was a concern as to why
the bill mentions other persons in the text, but not in the
following section. The simple answer to that is because all
through the statutes, other persons, as well as grandparents, can,
not petition, but at the court's alone choice be granted visitation
rights. But this bill does not give other persons the right to
petition, it only gives grandparents the right to petition. While
we only give grandparents the right to petition, every where we
talk about what the court decides to do, we have to include other
persons because the court already has the authority to give that to
other persons, as well as grandparents.
CHAIRMAN PORTER said the next question dealt with page 2, lines 6
and 7, where it seemed to be bringing in the ability to petition to
be included in the hearing of an adoption for the first time, on
page 2, line 7. The standards in the previous section, "the
grandparent has established or attempted to establish ongoing
contact." He asked Senator Donley if it was his interpretation
that these standards would apply to this adoption.
SENATOR DONLEY answered that it would only be "in the best
interests of the child." That is the standard the judge should
always use in order to grant the petition. We do not change that
standard anywhere, that is real consistent in existing law. All
this bill does is allow the grandparents the standing to ask for
that for the first time. This is the same thing we have in every
other state in the United States, it is just standing to ask. This
bill does not affect the standard that the judge uses to determine
whether he is going to grant that request from them.
CHAIRMAN PORTER said his only concern is that it does not
specifically say that is the standard when it deals with the
adoption as it is stated in (b). 'After decree or final order
relating to child custody is entered under those two statutes,"
then "OR relating to an adoption under AS 25.23, a grandparent may
petition, only if," and then these are two other considerations.
He understood that we want the ability to exclude that in an
adoption if they have already petitioned and been denied at the
original custody hearing.
SENATOR DONLEY stated his staff had pointed out that in the
adoption statutes, AS 25.23.125, it has a description of the
interests of the minor to be adopted, and subsection (c) says the
court may issue a protective order or other order that is in the
best interests of the minor who is to be adopted. So clearly, the
court could, if it was in the best interests of the minor, decline
to allow visitation, or in fact issue an order to prevent
visitation. He said his staff had prepared an amendment in case
additional language was requested. His personal opinion was that
it was just not needed. It is really doing something that is not
addressed by this bill. It is really adding something that is very
much a stand alone concern, because clearly, all that amendment
does is create a new heightened scrutiny for the issue of potential
dangers to the children from relatives, and that is clearly already
provided for in the things the judge is supposed to look at in
determining visitation, and would be or not be relevant with or
without this bill because there are a lot of other people other
than grandparents, and once again this does not change anything as
far as the judge giving these visitation rights, or the standard
the judge uses, it only says that grandparents may ask. He did not
believe the amendment to be necessary, but if the committee feels
this is something they really want to do, we went ahead and had the
language prepared just to expedite the process.
REPRESENTATIVE TOOHEY stated it was very clear to her that it is
attributed to the grandparents' son or daughter, so you are
flagging the possibility that the parents of a child who are
accused of child abuse are going to come to the grandparents' house
and abuse the child. It is not going to do anything except make it
one step closer to safety for the child, and she would hate to be
on the hot seat, saying that we did not do this, and this child was
abused. She felt the amendment language would be the best way to
go. She made a motion to adopt Amendment Number 1, which is as
follows:
Page 2, after line 13:
Insert a new subsection to read:
"(c) When determining whether to grant rights of visitation
between a grandparent and grandchild under this section, AS
25.20.060, or AS 25.24, and when determining the terms and
conditions to be attached to a right of grandparent visitation, the
court shall consider whether there is a history of child abuse or
domestic violence attributable to the grandparent's son or daughter
who is a parent of the grandchild."
Hearing no objection, the amendment was adopted.
Number 730
REPRESENTATIVE TOOHEY made a motion to move HCS SSSB 27(JUD) out of
committee with Amendment Number 1, individual recommendations and
zero fiscal notes as attached. Hearing no objection, it was so
ordered.
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