Legislature(1997 - 1998)
02/23/1998 01:07 PM 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
HB 335 - UNIFORM INTERSTATE CHILD CUSTODY ACT CHAIRMAN GREEN announced the next item of business would be HB 335, "An Act replacing the Uniform Child Custody Jurisdiction Act with the Uniform Child Custody Jurisdiction and Enforcement Act; and amending Rules 4 and 62, Alaska Rules of Civil Procedure, and Rule 205, Alaska Rules of Appellate Procedure." He called on Representative Bunde, chairman of the House Health and Social Services Standing Committee, which sponsored HB 335, to present the bill. Number 1515 REPRESENTATIVE BUNDE informed members that HB 335 is necessitated by the highly mobile population in Alaska; it had been requested by the federal government to provide uniformity throughout all 50 states. It reduces the incentive for parental noncustodial kidnapping. It also it reduces the opportunity to go to another jurisdiction and have a different custody order written, with resultant in-fighting where children are used by parents to attack each other. Furthermore, it encourages better enforcement of child custody and visitation orders, and it provides uniformity throughout the nation. Representative Bunde characterized HB 335 as a relatively simple bill. He advised members that his staff member, Patti Swenson, could answer questions. Number 1540 REPRESENTATIVE JAMES stated her understanding that if someone obtained child custody through a California court, for example, the parties would have to go back to that California court to make any changes. Number 1596 PATRICIA SWENSON, Legislative Assistant to Representative Con Bunde, Alaska State Legislature, answered that she believes so, then deferred to Deborah Behr. REPRESENTATIVE BUNDE pointed out that orders from another state are not subject to modification, unless there are child abuse issues, for example. REPRESENTATIVE JAMES asked whether this child custody involves child support. Number 1637 DEBORAH BEHR, Assistant Attorney General, Legislation and Regulations Section, Civil Division (Juneau), Department of Law, advised members that she is also a uniform law commissioner for the state, and she was one of nine attorneys nationwide selected to work with the national conference on uniform state laws on this issue. She stated, "It's not a federal organization. Each state sends representatives to it, and I'm pleased to report that of the 52 states and territories that participated, we did not get a negative vote on this bill." MS. BEHR said to answer Representative James's question, they are talking about modification. She referred members to page 3, lines 16 through 27, which basically sets out the standard for that. She suggested the best example would be an Alaska divorce where the mother and child move to California and then subsequently decide the child would be better off with the noncustodial parent in Alaska. Ms. Behr explained, "If they want to back and do modification, they've got to come back to Alaska to do that modification. As long as there is one parent in the state of Alaska, Alaska continues to have what is called home state jurisdiction, and they continue to have jurisdiction to modify the order. So, if they reverse it, what you were saying, with everyone being in California and somebody moving to Alaska, whatever state did the original order, they're the ones that get to do the modification, until a point that everyone's left or the original state relinquishes jurisdiction; and at some point, I could see the Alaska court saying, 'Look, this child's been out of state too long; it just makes sense to have it in another place.'" Number 1715 MS. BEHR informed members there is a Uniform Child Custody Jurisdiction Act in place in all 50 states. The problem with the way it is written is that it isn't always clear which state is supposed to do it, resulting in lengthy litigation. She had asked someone in private practice about the latest costs, which turned out to be $7,000 just to figure out which state will do it. Ms. Behr explained that it is not in any child's best interest to have a long, drawn-out discussion over which state is going to decide the order. Number 1747 REPRESENTATIVE JAMES said her concern isn't so much over the custody as it is over child support. Situations can change drastically and rapidly after child support levels are set, and when people live across the nation, it may be difficult to get back to the original court. She posed a situation where the noncustodial parent is still in California, and the custodial parent takes the child to Maine; she noted that a desire to change child support could come from either side. She asked, "Are you saying, then, that this bill, as long as one of the parents involved in this issue was still in California, that the whole thing would have to go back to the original court ... where it was handled?" Number 1801 MS. BEHR specified that this bill doesn't deal with child support; there is a uniform law on child support that the state of Alaska has adopted. All this bill deals with is the jurisdiction for the initial child custody proceeding, and for modifications of it and for how to enforce child custody. Changes in child support would be under existing law, and there is a uniform law on child support. REPRESENTATIVE JAMES said custody and child support go hand-in-hand sometimes, when there is shared custody or if one parent lets the other parent take the child for a while, which happens in teenage years. Her own experience has been with the person who pays child support not being treated fairly, perhaps having the child and yet paying child support. She asked whether such a person might have to go some other state to address that. Number 1854 MS. BEHR replied that this Act is intended to give swift, sure enforcement of a court order, right now. She explained, "If a noncustodial parent has a right to see a child - the judge has said they're an appropriate person to see that child, there are no intervening domestic violence orders, CINA [child-in-need-of-aid] orders, whatever - well, then, that person should have a right to be able to bring ... that order quickly into an enforcing court and say, 'I have a valid order, I want to see my child.' And the goal of this is that it can be quickly done, inexpensively and, ... we're hoping, without a lawyer." She restated that child support issues would have to be filed through a separate mechanism, which HB 335 has nothing to do with. Number 1890 REPRESENTATIVE JAMES said her case would involve change of custody. MS. BEHR responded that if it was originally an Alaska divorce and the person was living out of state with the child, Alaska would continue to have home state jurisdiction to be able to modify that order. A person in another state wanting to modify that Alaska order would have to come back to Alaska, or show that there is no party in the state of Alaska now, or show that it is an inappropriate forum and that the modification should be done in the other state. Number 1925 REPRESENTATIVE CROFT noted that Ms. Behr had mentioned two ways that there might be a modification. He indicated he reads it to have a third, which is temporary emergency jurisdiction because of a showing of some immediate harm to the child. MS. BEHR said that is a very strong provision of the Act. She stated, "We were observed by domestic violence groups nationwide, and they wanted to make sure that although we're preserving this home state jurisdiction, that if a judge is faced with a difficult situation of abuse and neglect, the court can act. So, yes, ... the court can act on that kind of a situation." MS. BEHR pointed out that in a typical case where there is a court order and one parent is frustrated because of maybe not getting what they wanted from the judge, the divorce and the enforcement state would not be relitigated. REPRESENTATIVE CROFT commented, "This is not a federal edict. This is, in fact, I guess, the way we'd prefer it to happen. They set up a uniform rule that works well, and we all adopt it voluntarily, with the same protocols and all that. This is, in fact, the antithesis of the federal government just saying, 'Everyone abide by these rules.' This is all of us doing it voluntarily." Number 1994 REPRESENTATIVE JAMES restated her earlier concern about a mother and child living in California, where the divorce was, and the father being in Alaska. If the mother needs help with a teenager who is not behaving, and if the father is currently paying child support to the mother, he may refuse to take the child until there is a change of custody. Representative James said it may be an emergency situation, which has happened, where the child custody never got changed until it was really a mess. But there is nothing the man could do from Alaska, save going to California himself and requesting the change. MS. BEHR pointed out that although they would have to go to California, they don't have to go there physically. This Act sets up and recognizes telephonic communications, TV, and all the modern communications. It is entirely likely that the person could participate from Juneau or Fairbanks, for example, without necessarily having to travel. MS. BEHR explained that the goal of this Act is to set up one court to make the decision, so that people won't litigate over which court makes the decision but rather over what is in the best interest of the children. She stated, "If you have two courts that arguably both have jurisdiction, it's possible for a person to be subject to two orders, and then they don't know exactly what they're supposed to do. So, that's what it's designed to address." Number 2072 MS. BEHR mentioned her earlier testimony that the bill resulted from a process involving representatives from 52 states and territories. She said the representatives voting on it from the states were legislators, judges and executive branch people with a wide range of backgrounds. The bill was two years in the drafting. Ms. Behr said that to her, it is a bill of advantage to both custodial and noncustodial parents. For example, a custodial parent sending a child to another state, who worries that the noncustodial parent won't return the child, could use the Act for that purpose. MS. BEHR reminded members that all states have adopted the Uniform Child Custody Jurisdiction Act, which hasn't been updated in 20 years. This present Act updates that to address modern communications, domestic violence orders that are out there, and the Parental Kidnapping Prevention Act, and brings it in step with the times. She noted that there have been problems where people have been subject to two orders. Number 2113 MS. BEHR next discussed enforcement proceedings. Right now, depending on where a child is, when a parent or custodial parent wants to get the child back and has a valid order, there is no cheap enforcement mechanism to do that. This bill intends to allow somebody who has a valid order to get it registered, to give a certified copy to the other court, and for the court to quickly hold a hearing on whether there was due process and whether the court had jurisdiction to enter it. Ms. Behr stated, "You don't relitigate whether it's a good order or bad order. And then the court just basically tells the parents to go ahead and honor this order, or go back to the first state and get it modified." MS. BEHR continued, "Right now, each state has their own procedure for getting orders modified. In Alaska, we do an order to show cause. In Texas, they do a writ of habeas corpus. Other states do some other mechanism. ... And a lawyer that is dealing in family law, you have to go associate yourself with a lawyer in another state - which is a cost that the Alaska has to incur - and then you have to figure out their paperwork, make their time frame. This -- it's going to have one uniform paperwork - time frames, that sort of thing - provision." Number 2169 MS. BEHR said they want parents to follow the orders, so the children will have the visitation to which they are entitled. One mechanism is that whoever doesn't abide by the order without a good reason would be responsible for attorney fees and costs. It is also possible for a judge to order the child to come into court, so the judge can ensure that custody turns over to the correct person. In addition, in extraordinary circumstances involving avoidance, it is possible to have the troopers pick up the person. "We don't intend to do that," Ms. Behr added. She concluded by saying the goal is to Alaskanize it and make it predictable, so that parents abide by the orders and so that children can spend more time with their parents and less time in court. Number 2211 REPRESENTATIVE BERKOWITZ referred to the international application of this chapter and asked Ms. Behr to describe some of the background behind this provision. MS. BEHR noted that it is an important provision, and generally a lot of people misunderstand it. She said, "But we had people from the State Department watching our proceedings, and they brought some tremendous, terrible cases where people had valid orders and then one person would take a child ... and go to a foreign country. And it was very difficult to get quick enforcement." Ms. Behr indicated that when Congress enters into a compact under the Hague Convention [on the Civil Aspects of International Child Abduction] with these other countries, this provision allows a court of that state to accept and be recognized under the Uniform Child Custody Jurisdiction Act; it will be a cheap, easy way for them to do it. She said she could see Canada and the United States having routine visitation provisions and following this, for example, and she thinks it may help people in this area. She added that an international abduction is one of the most difficult cases. Number 2263 REPRESENTATIVE BERKOWITZ asked Ms. Behr to go over what the Hague Convention covers. MS. BEHR referred members to page 9, lines 25 through 28, which addresses enforcement under the Hague Convention. She stated her understanding that it is Congress and the State Department that decide to enter into the Hague Convention; it is entered into with countries that wish to be in it and that have jurisdiction systems similar to ours. The parties agree to honor each others' orders, which makes sense. Ms. Behr commented that that is the goal of this and cited some examples. Number 2303 REPRESENTATIVE BERKOWITZ observed that Ms. Behr had picked countries similar to ours. He stated, "But the horror cases that I've heard involved countries that are very different culturally. Would the failure to become party to the Hague Convention necessarily lead to the conclusion that the child custody of the other country violates fundamental principles of human rights?" MS. BEHR replied that there is a provision in here about allowing the court to look at whether the child custody order itself violates human rights. She apologized for not being able to find it quickly, then indicated there had been discussion about concern over countries where child laws and due process are dissimilar to our own; she said that is only a handful of countries. She concluded, "I'm sorry, I'm not a Hague Convention expert. But the people who came were people who talked about Canada, and people in the military in Germany and France, and things like this. And this will help out with that." Number 2352 REPRESENTATIVE BERKOWITZ responded, "I just want to make sure that our courts don't have to turn children over to countries where the other parent will never see them, or the jurisdiction exercised by a country like that would preclude a parent from getting that kind of custody. And I've heard of cases where mothers in particular have been cut off from access to their children because the foreign-national father spirits them abroad and that's the end of it." MS. BEHR referred to page 17, lines 13 through 15, and said that is the provision she remembers. It says, "A court of this state is not required to apply this chapter to a child custody determination made in a foreign country when the child custody law of the other country violates fundamental principles of human rights." Ms. Behr suggested that may answer Representative Berkowitz' question. She added that it basically deals with due process, saying, "you want to make sure that the person had notice of it and an opportunity to be heard." CHAIRMAN GREEN asked whether there were further questions, then noted that no one else had signed up to testify. Number 2393 REPRESENTATIVE JAMES made a motion to move HB 335 from committee with individual recommendations and the attached fiscal zero note. CHAIRMAN GREEN asked whether there was any objection. There being none, HB 335 moved from the House Judiciary Standing Committee.
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