Legislature(2003 - 2004)
03/01/2004 01:10 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 385 - AWARDING CHILD CUSTODY Number 0698 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 385, "An Act relating to awarding child custody; and providing for an effective date." Number 0622 REPRESENTATIVE HOLM moved to adopt the proposed committee substitute (CS) for HB 385, Version 23-LS1273\Q, Mischel, 2/27/04, as the work draft. There being no objection, Version Q was before the committee. CHAIR McGUIRE, speaking as the sponsor of HB 385, explained that this legislation would have Alaska adopt the model code of the Family Violence Project of the National Council of Juvenile and Family Court Judges. The legislation attempts to deal with a child custody award when there has been domestic violence in the home prior to the split and eventual award of custody. Chair McGuire opined that the current law is unfair to the parent that has been the subject of abuse. She directed attention to page 2, line 22, and explained that under the current law, the court is required to review which parent is more likely to continue frequent and continuing contact with the other parent. She then directed attention to page 3, line 17, and [explained that under the current law] the court has to review the desire and willingness of each to allow an open and loving relationship, on a frequent basis, between the child and the other parent. However, if the child or one of the parents has been abused by the other parent, the [abused] parent or [non-abusive parent] probably doesn't feel like encouraging a close, loving relationship. Chair McGuire opined that the court's standard is wholly unfair and, in many cases, places the abused parent and/or abused child in jeopardy. CHAIR McGUIRE explained that this legislation shifts the burden and thus: "We will ask the court to continue to say that unless it's shown to be detrimental to the welfare of the child, considering the factors that are in [AS] 25.24.150(c), ... but we're also saying that you have to consider the rebuttable presumption that's now going to be present in what will be a new subsection (g)." The rebuttable presumption specifies that a child will not be placed in partial or sole custody if there are proven incidents of serious bodily injury and/or a proven pattern of domestic violence. She noted that she has worked closely with Representative Gruenberg, who practices family law. Although there have been some compromises, she stated that she is unwilling to remove the rebuttable presumption language. She emphasized that the overarching goal is the protection of the child. CHAIR McGUIRE pointed out that the committee packet should now include an article entitled, "Man suspected in death of toddler also faces child porn charges"; the article relates a real situation that occurred in Ketchikan. The committee packet also includes a petition from adults in Ketchikan who support HB 385. The committee packet also now contains a zero fiscal note from the Alaska Court System. Number 0179 CHAIR McGUIRE mentioned that there are statistics that review the long-term psychological effects of abuse on children as well as in cases of observing it between parents. In many cases, these children go on to face adverse physical and mental development. In some cases, these children become abusers themselves. Therefore, Chair McGuire said that she didn't want to punish a battered co-parent by awarding custody to the parent who has been the abuser. Reading a quote from the American Judges Association, Chair McGuire said, "Studies show batterers are able to convince authorities that the victim is unfit or undeserving of sole custody in approximately 70% of challenged cases." "Friendly parent" statutes are often used by abusive parents against the protective parent, she noted. Therefore, this legislation attempts to better protect children from the effects of domestic violence by achieving consistency between Alaska child protection statutes and child custody statutes. CHAIR McGUIRE informed the committee of the following: Alaska ranks in the top five states in the nation for per capita rates of domestic violence. The rate of Alaskan women being killed by a partner is one-and-a- half times the national average. Alaska has six times the national average of reported child sexual assault. And in three out of four reported cases, the victim knew the offender. The most commonly reported type of sexual abuse [is a father who commits] ... TAPE 04-31, SIDE A Number 0001 CHAIR McGUIRE continued: ... incest with his daughter. And those statistics are reported out of the Alaska Department of Health and Social Services. CHAIR McGUIRE opined that there are sufficient tools within the court system that have been maintained in this legislation to allow for a person to complete a substance abuse program and an intervention program for batterers, if applicable, the landscape of the case may change. Number 0091 PAIGE HODSON informed the committee that she is the woman who brought this issue to Chair McGuire. She explained that she is a single mother of two children, ages thirteen and six, a court- appointed special advocate (CASA) volunteer for abused and neglected children in Alaska, as well as a survivor of domestic violence. Ms. Hodson explained that she was in an abusive marriage for 11 years. The physical abuse would happen one to two times a year while the remainder of the time was permeated by a high level of cruelty, emotional abuse, and verbal abuse. She related some of the events that happened, most of which, she said, happened in front of her oldest daughter. MS. HODSON pointed out that she struggled to obtain help for her family and tried to get her husband to various types of programs, and he did attend four years of marriage counseling. After that four years, she said she realized that things weren't going to change. When the child abuse starting happening, she knew she had to get out [of the relationship]. She was eventually able to file for divorce. Although she thought she was doing all the right things, when she entered the court system she found her world turned upside down. She explained that she thought she and her children would be protected and that reasonable visitation would be put forth. However, she was blamed for the violence equally and her fears of the violence and his parenting were "pathologized." MS. HODSON said that furthermore, she discovered that [an incident of] domestic violence was used to characterize the divorce as a high-conflict divorce. Moreover, the child abuse was minimized to be a difference in parenting styles. The toll on her eldest child was enormous and she almost failed fourth grade. Ms. Hodson informed the committee that although she ultimately prevailed, it was only after two full custody trials. She said she has full legal custody and primary physical custody, but her ex-husband is allowed visitation and thus her children are still not protected, she said. Number 0420 ALLEN M. BAILEY, Attorney at Law, informed the committee that he is a family law attorney who was the [Municipality of Anchorage's] prosecutor for over 10 years. For the last 30 years, he said he has prosecuted batterers or represented victims of domestic violence in his practice. "This is an important issue because it deals with the protection of our children," he said. As mentioned earlier, the National Council of Juvenile and Family Court Judges has recommended this presumption as has the American Psychological Association, the American Bar Association's Commission on Domestic Violence, the American Medical Association, and the United States Congress. Mr. Bailey stated that this proposal isn't gender biased since both men and women commit domestic violence. However, he acknowledged that there is a predomination of male-initiated domestic violence. He relayed the experience he'd had with domestic violence through his practice. Mr. Bailey emphasized the need to protect the children whenever possible. MR. BAILEY turned to the presumption provision, which was taken from Louisiana's state statutes. He pointed out that there are about 23 other states that have some version of presumption language, adding that at least 20 of those states have strong presumption [language]. Mr. Bailey, speaking as a family law attorney and the vice-chair of the American Bar Association's Family Law Section Domestic Violence Committee, strongly urged the committee to pass this legislation. CHAIR McGUIRE turned attention to the first U.S. national policy statement supporting a rebuttable presumption in domestic violence cases, which is H.R. 172. She said, "They passed a sense of Congress that for purposes of determining child custody, credible evidence of physical abuse of a spouse should create a statutory presumption that it's detrimental to the child to be placed in the custody of the abusive spouse." She reiterated that in 1994, the National Council of Juvenile and Family Court Judges released the model code, which included the rebuttable presumption. Additionally, the American Bar Association (ABA) passed a resolution in August 1989 specifying that joint custody is inappropriate in cases in which spousal or child abuse or parental kidnapping is likely to occur. In 1994, the ABA published a report to its president that [recommended] the adoption of statutes that would create a presumption against custody to batterers. From the William Mitchell Law Review, Chair McGuire related that some of the reasons these policies were implemented is because of the growing body of social science literature showing the often severe and long-lasting effects that domestic violence has on children. Number 0747 TRACY GOULD informed the committee that this legislation is important to her because her best friend was murdered by her ex- husband four days after being granted a divorce. She recalled that during the course of the divorce hearing, the judge reviewed testimony of eyewitnesses, professionals, and counselors who testified to the ex-husband's abusive nature and obsessive need for his wife. Even when one of the children decided to poison the father, the judge still decided to "throw all that out." The judge also viewed the husband's "excessive" nature with the children to be a difference in parenting styles. The wife repeatedly requested safety measures for herself and her children. MS. GOULD said, however, that the judge felt that the husband and wife should still be able to co-parent, regardless of their personal feelings and the husband's behavior toward the wife. Consequently, after the divorce was granted, the husband was allowed visitation and it was on those grounds that he forced entry into the wife's house where he stabbed her over 56 times. The children saw their father leave with a knife in his hand covered with their mother's blood. Ms. Gould said that her best friend wasn't the only person that died because of the "friendly parent" provision and she wasn't the last. Three other women in the Fairbanks area were killed during the same time period in which the trial was taking place. Ms. Gould said that HB 385 would be invaluable toward changing these [friendly parent] laws so that these situations don't ever happen again. Number 0995 KIMBERLEE VANDERHOOF, Program Director, Careline Crisis Intervention, informed the committee that prior to her current position, she worked as the legal advocate for the women's shelter in Fairbanks for five years. During the time she worked with the women's shelter, she said she worked with thousands of victims, most of who had children and were intimidated by the court system. Ms. Vanderhoof stated that she was honored to be the legal advocate for Lisana Burch. In the months before Ms. Burch's custody trial, she requested and was granted protective orders against her husband. Ms. Burch had expressed concern that she would be viewed as not complying with the "friendly parent" provision of Alaska Statutes if she obtained a protective order during her divorce. Therefore, Ms. Burch decided not to obtain a protective order. Ms. Burch strongly and courageously represented herself through her divorce and custody hearing and throughout the trial she expressed concern for her safety and the safety of her child. MS. VANDERHOOF said that during Ms. Burch's trial, witnesses testified that Ms. Burch's abuser had a problem with anger, had been diagnosed with a mental health disorder, had been suicidal, self medicated, and could pose a threat to the safety of his children. However, toward the end of the trial, the trial court judge commented that he had heard little that would help him make a decision. In the end, the court concluded that the parties should be flexible and admonished the parties that they needed to agree on important decisions in their child's life. Ms. Burch was granted primary custody, but three days later during a visitation exchange "the spider lured her to his web." If this legislation had been enacted in 2001, it would have provided another tool to enhance the safety of domestic violence victims. Ms. Vanderhoof urged the committee to pass HB 385 because it will eliminate a victim's fear of being seen in an unfavorable light if the victim chooses to use a protective order to enhance his/her safety. Number 1170 GIGI PILCHER began by thanking the sponsor [for introducing HB 385]. She said it's now time to talk about protecting lives rather than assets. Ms. Pilcher related that on February 2, 2004, a young woman, Nannaput Paul, who had been in the U.S. for a little over three years, placed her trust in the Alaska justice system to protect her child and herself. This woman petitioned the court on behalf of her 22-month-old daughter for a domestic violence restraining order against her husband. Her husband had told her that if she left him, she would be sent back to Thailand and never see her daughter again. MS. PILCHER said that Ms. Paul wanted her daughter to be safe and thus she placed her trust in the system and "we all told her she was doing the right thing and that everything would be alright." However, on Friday, February 20, 2004, during a hearing, the judge modified the order, based on a court- appointed guardian ad litem, to allow for unsupervised visits between father and daughter. When Ms. Paul's daughter was not returned to her on time, she called the police [and] the guardian ad litem; her daughter was found dead at the father's residence. Ms. Pilcher said that Ms. Paul did everything right to protect her daughter, but the system failed her and her daughter. Although it's too late to save Ms. Paul's daughter, it's Ms. Paul's wish that no other parent will have to suffer such a great loss. In closing, Ms. Pilcher requested that the committee pass HB 385. Number 1382 ROSITA TWAIM opined that this legislation should be passed because children are being killed. Ms. Twaim highlighted that when domestic violence is involved, the most dangerous period of time is when the woman decides to leave her husband. She expressed the need for a mother to be able to protect herself and her children. If the father has a criminal background and has shown violence toward the mother and children, the father shouldn't be allowed to see either the mother or the children. Exchanging the children between the parents while the court is determining which parent should have custody shouldn't be allowed unless the mother filing the restraining order agrees to the visitation. Ms. Twaim acknowledged that starting over for a mother and her children can be difficult, but she knows it can be done since she managed to come out of a relationship involving domestic violence. The children are really the victims and the law needs to be changed to protect the children. Number 1491 DENNIS L. McCARTY, Attorney at Law, informed the committee that he has been an attorney for over 30 years. He also informed the committee that he was the attorney in the earlier mentioned case of Ms. Paul. Mr. McCarty explained that he has always taken on domestic violence cases thinking that he could make a difference. He said, "I'm always hesitant ... to rush forward with a particular instance to [state] ... a reason why something should happen, but this is a law that does need to be changed." The statute proposed in HB 385 would make the presumption not just one of nine factors to be considered by the court. It's most important, he opined, to have this definition in the domestic violence petition area. In a custody [case], the judge seems to be able to more completely explore areas, as it's not an expedited process. Furthermore, this proposed change would be a major factor in how these hearings are handled, especially in rural areas where the magistrate doesn't have extensive legal experience or experience dealing with domestic violence. MR. McCARTY said he believes there is a conflict between encouraging the parent that's willing to be cooperative and the one that isn't. He pointed out that there is a means of proving domestic violence, and in many cases the definitions come from Title 18, which refer back to criminal statutes. He remarked that the committee may want to consider whether some changes have to be made to Title 18 or whether to refer to other statutes. In the case of Ms. Paul, the involvement of child pornography might be evidence of domestic violence. He noted that there are other statutes that explicitly speak to hitting and threatening. In Ms. Paul's case, the magistrate concluded that there was domestic violence and the long-term order should continue. However, the [difficulty] is in balancing the directive to maximize the contact of each parent with the children while maintaining safety for the children. Mr. McCarty emphasized that [the courts] are driven by the best interest of the children. MR. McCARTY relayed his understanding that [HB 385] makes it abundantly clear that if there is a determination of domestic violence, it becomes a strong factor in driving the ultimate decision regarding custody. Mr. McCarty said he viewed [HB 385] as a tool, noting that he hoped that those dealing with these type cases are already using [what is laid out in this legislation]. He reiterated that this should be very beneficial in rural areas where the only resource available is a domestic violence petition before a magistrate. Number 1752 KERRY RASMUSSEN informed the committee she is the grandmother of an eight-year-old whom she feels this legislation will greatly help. She said she hoped HB 385 would pass. Number 1762 LANETTA LUNDBURG had her testimony read by Jessica Stone [original punctuation provided]: The reason for my presence today for public comment on House Bill 385 is very interesting. If asked about this bill one week ago I wouldn't have known anything about it, or interest in participating in public comment. The events of last week and a tragedy we have experience has caused pause for thought. HB 385 is very important and needs to be closely looked at. After a brief review of House Bill 385 I continue to wonder if there is a truly fail-safe way to be a voice for the silent and be a bo8ice for the young innocent victims. One item that comes vividly to my mind is the need for a "cooling off" period, post ruling in a custody case. As you are aware, cases brought forth always are ridden with emotion. Even though a cooling off period (suggest 30 days) isn't an absolute guarantee, it does provide time for improvement or more thorough assessment. Cooling-off period means that for a minimum of 30 days any consideration for visitation by the nonawarded custodian parent will only be allowed a visitation with a child under the supervision by a 3rd party court-appointed custodian. What our community has recently experienced had decisions of tragic consequence. We cannot afford to compromise defending the voice of the silent & innocent young. Thank you. Number 1847 CHRISTINE McLEOD PATE, Mentoring Attorney, Alaska Network on Domestic Violence and Sexual Assault (ANDVSA), thanked the committee for allowing her to speak in favor of HB 385. She informed the committee that she has been an attorney in Alaska for 10 years and has been working in the field of domestic violence for the past 12 years. She reviewed her work in this area, which includes about 2.5 years as a staff attorney for Alaska Legal Services in Fairbanks and 2.5 years as the executive director of the domestic violence and sexual assault program in Sitka. For the past five years, she has been with ANDVSA running a pro bono program for victims of domestic violence and sexual assault. She explained that in her current position, she screens cases statewide; these victims need representation primarily in divorce, custody, and protective orders. She further explained that she finds volunteer attorneys, whom she trains and mentors, for the aforementioned clients. She noted that she also handles a small caseload herself. MS. PATE said that once a victim has made the difficult decision to leave the batterer, custody litigation often becomes the new front for the batterer to exercise control over the victim. Batterers threaten victims that they will lose custody if they leave the relationship. She relayed that Richard D. Cody (ph), a nationally known family law attorney, has summarized this as follows: After 20 years in the family law courtrooms throughout this country, I can confidently say that no woman, despite very abundant evidence that her child has been molested by her ex-husband or that she has been repeatedly humbled by the violent father of her child, can safely walk into any family court in the country and not face the grave risk of losing custody to the abuser for the sole reason that she dare to present the evidence to the judge and ask that the child be protected. Number 1947 MS. PATE echoed that some studies show that abusive fathers contest custody up to 70 percent of the time. Furthermore, social science research agrees that domestic violence is about one person's exercise of power and control over the victim. Once the victim decides to leave the relationship, the family court becomes the new arena to exercise power and control. Ms. Pate relayed that there are several reasons abusive parents are winning, the first being money. Frequently, the abusive parent has more control over family assets and has better access to legal representation. The second reason is related to the nature of domestic violence. Characteristics that batterers exhibit, such as confidence, manipulative behavior, denial about battering, can "come across well in a family court arena." In contrast, however, the victim of abuse may be suffering from post traumatic stress disorder or other psychological effects of the battering, and so may come across as irrational, over- emotional, spiteful, and vindictive. MS. PATE said that the third reason abusive parents are winning is lack of evidence because the nature of domestic violence, along with the shame and denial that often accompanies it, makes it common that there is little evidence or witnesses. The final reason abusive parents are winning is because of the lack of training. Many judges, child custody investigators, and guardian ad litems are sometimes the de facto decision-makers in these cases, but they have little or no training in domestic violence. In fact, there is no requirement that child custody investigators, who are often charged with making expert determinations with regard to what is in a child's best interest, have training in domestic violence or sexual abuse issues. MS. PATE said that although society's general understanding of domestic violence has greatly increased over the last 20 years, the evolution of state custody laws has moved away from holding the abusive parent accountable in the family law arena. For example, Alaska's family courts are (indisc.) mediation, joint custody, and friendly parenting. The aforementioned concepts are in sharp contrast to social science literature about domestic violence and the recommendations of several national organizations. Furthermore, Alaska's statutes outside the family law context are set up to protect the safety of victims of domestic violence and the post-separation wellbeing of the children. Social scientists fear that the time of separation is the most critical time for battered women. She informed the committee that separated women are abused at a rate of 14 times higher than women still living with their abuser. Number 2049 MS. PATE recalled that the committee has heard about the devastating social, psychological, and physical effects of domestic violence on children. She pointed out that there is a strong correlation between parents who abuse their partners and parents who abuse their children. She mentioned that the American Law Institute, in its "2002 Principals of the Law Family Disillusion Analysis and Recommendations", includes the recommendation close to the presumption included in HB 385. Ms. Pate reiterated that Alaska's statutes, save the area of family law, take a strong stance of protecting children from domestic violence. In fact, Alaska law provides an additional criminal charge if a child is present during a domestic assault. Furthermore, domestic violence between parents is grounds for the Office of Children's Services to take custody of children. MS. PATE said that ironically, a battered mother has to worry that if she leaves the domestic violence, the abuser would take the children, and if she doesn't leave, the state will take the children. Furthermore, there is court precedent regarding the harmful effects of domestic violence on children. She offered that the Alaska Supreme Court has acknowledged that it is well- documented that witnessing domestic violence has a profound effect upon children and that there are significant psychological problems with children who witness domestic violence, especially during important developmental stages. MS. PATE opined that in HB 385, the rebuttal presumption against a parent perpetrating domestic violence gaining custody takes some discretion away from judges, adding that that discretion has been very harmful. She relayed that she has spoken with hundreds of battered women with regard to the custody awards they may receive in court and she has to explain the great risks that exist under current law. Ms. Pate said that victims are baffled by the court's lack of focus on their safety and thus they lose faith in the court system. Therefore, the victims stop utilizing the system and ultimately choose either to stay in violent relationships, which perpetuates the cycle of violence for future generations, or to take drastic measures such as going underground or into hiding, which is sure to result in the loss of custody when they eventually return to the court system. Number 2181 MS. PATE turned to joint legal custody or shared decision- making. She informed the committee that courts routinely order an abusive parent to have joint legal custody of children with parents they have abused. Currently, the law contains a presumption that joint legal custody is in the child's best interest. However, the Alaska Supreme Court has found that a history of abuse between the parties should make joint legal custody inappropriate. Despite the aforementioned precedent and the knowledge that it's dangerous for victims to have continuing communication and contact with their abusers, family court judges continue to award joint legal custody orders in domestic violence and sexual assault cases. MS. PATE spoke in support of amending Alaska's current "friendly parent" factor. She expressed the need to make an exception for victims of domestic violence. The harmonious co-parenting envisioned by the friendly parent factor is impossible and often dangerous in family law cases. If the court doesn't "see" the domestic violence or minimizes it, the protective parent is penalized under the theory that not awarding custody to the abusive parent can create "parental alienation syndrome," a junk science that isn't supposed to be used by Alaska's family court judges. MS. PATE said that under the current law, she is forced to advise clients that despite concerns regarding their safety and the safety of their children, they have to appear to be friendly to the other parent and sometimes permit visitation or they risk losing their children. This isn't the message that should be sent to victims of abuse, she said. In closing, Ms. Pate urged the committee to move out HB 385, and stated that the greatest beneficiaries of this legislation are the children. Number 2282 ALVIN CARR informed the committee that he is a retired law enforcement officer who is currently employed at Ketchikan General Hospital. Mr. Carr congratulated the committee on trying to get HB 385 passed, as it appears to be a good thing for victims of domestic violence. He pointed out that child pornography isn't listed as an abusive behavior in the [statute] being discussed today. Furthermore, child pornography isn't listed in Title 18, the domestic violence statute. Mr. Carr said he suspected that most everyone would agree that coercing children by threat or monetary means to engage in sexual acts for the sake of selling or transmitting those acts is a crime of violence. If the aforementioned is true, then one would surmise that those who buy, sell, distribute, and possess child pornography are included in the crime of violence against children. TAPE 04-31, SIDE B MR. CARR said that if child pornography was added to the domestic violence Act or to the Title 25 as an act of abuse, it would go along way toward giving the courts some leeway with regard to providing a satisfactory parent. Mr. Carr, returning to the recent situation in Ketchikan, indicated that court orders should be in hand when individuals leave the court. Mr. Carr expressed concern with regard to the totality of circumstances surrounding investigatory methods for placement of children when there is to be dual custody. He then turned to AS 25.20.090(10), which says "other factors the court considers pertinent." He explained that there are objective factors and subjective factors, both of which should be considered. Mr. Carr again congratulated the committee for its efforts to make the law better in this area, although he said he believes more work can be done to help the courts and its agents in these cases. Number 2212 LAURIE BROWNLEE, court-appointed special advocate (CASA), began by noting her support of HB 385. As a CASA volunteer, she said she has seen first hand the effects of domestic violence and abuse on children. More importantly, she informed the committee, she is testifying as a survivor of childhood domestic violence and abuse. She relayed that she grew up in an extremely violent home, and therefore knows how dangerous it is for children to be in such an environment. Such situations are detrimental to a child's sense of safety, trust, and security. MS. BROWNLEE explained that her mother was abused by her father for more than 17 years. She recalled being 16 years old and calling the police when her father was holding her mother and two of her other sisters at gunpoint. She noted that her father was taken away, no one was harmed, and her parents were eventually divorced. She relayed that although she has recovered from the psychological effects of her situation, her youngest sister has become the victim of long-term domestic violence by her now ex-husband. Her sister struggled with the courts. Despite having to obtain three separate protective orders against her husband, her sister ultimately had to accept the court's custody ruling, which gave her ex-husband substantial unsupervised visitation with her two small children. Therefore, Ms. Brownlee said she hopes that by passing HB 385, the cycle can be broken, because abused children often become abusers as well as victims of abuse by the abuser and the court system. Ms. Brownlee concluded by urging the committee to support passage of HB 385. CHAIR McGUIRE, upon determining no one else wished to testify, closed public testimony. REPRESENTATIVE GRUENBERG said he has heard from people who are concerned that the judges trying these cases need to do justice and if many strictures are placed on the law, it may cause as much harm as good. Having practiced in this area, Representative Gruenberg said that he has viewed it from both sides. He then turned attention to page 4, line 7 of Version Q, which in part states: "The presumption may be overcome only by clear and convincing evidence ...." He asked if that language is found in any other state other than Louisiana. MR. BAILEY answered that he believes such language is found [in the law] in North Dakota. In further response to Representative Gruenberg, Mr. Bailey confirmed that the clear and convincing evidence standard is just below the standard of beyond a reasonable doubt; additionally, clear and convincing evidence is the standard for termination. REPRESENTATIVE GRUENBERG said that he has difficulty with [the clear and convincing evidence] provision in this legislation. The language refers to the successful completion of a batterer's course and that the individual doesn't engage in substance abuse. Furthermore, the legislation specifies that the best interests of the child require that parents participate as custodial parents under very narrow [circumstances]. Representative Gruenberg inquired as to Mr. Bailey's view of changing the aforementioned to language to refer to the normal civil standard of preponderance of the evidence. MR. BAILEY replied that [the Alaska Bar Association] believes that the rebuttable presumption is appropriate, and noted that the model code contains a preponderance of rebuttable presumptions. Number 1912 REPRESENTATIVE GRUENBERG related that there is some concern with the current language because it will make it difficult, in some cases, for the courts to determine an equitable solution. Therefore, he said that he had developed a proposal that would add the language "The courts shall [give] additional weight to evidence that the domestic violence was severe, repeated, or recent" to AS 25.20.090(8) and AS 25.24.150(c)(7), as well as language similar to that on page 5, lines 1-3 of Version Q. The similar language would read as follows: "The fact that a parent who was the victim of domestic violence suffers from the effects of the domestic violence does not constitute a basis for denying custody to the parent, unless the court finds that the effects of the domestic violence are detrimental to the parenting abilities of the parent." Representative Gruenberg inquired as to Mr. Bailey's view of such an approach. MR. BAILEY specified that Representative Gruenberg's proposal doesn't achieve the goal of protecting the children. He explained that the control dynamic in abusive relationships is established over time, and therefore it isn't necessarily the recentness of the domestic violence but rather the abuser's ability to do it again and again in order to maintain control. Many of these abusers are physically abusive and children in their care are 15 times more likely to be abused than children who are not in abusive homes. There is such a significant need to protect the safety [of the child] that the rebuttable presumption is believed to be appropriate. Number 1760 REPRESENTATIVE GRUENBERG turned to the tactic of obtaining a domestic violence order simply as a way to more easily obtain custody, and opined that the language at the top of page 4 would seem to allow such misuse. Representative Gruenberg asked how this could be guarded against under the current language. MR. BAILEY cited page 380 of Children Exposed to Marital Violence, which was published by the American Psychological Association. He read the following: "There seems to be a relatively low percentage of allegations of child abuse in divorce cases; less than 10 percent of the cases. And when they do occur, they are substantiated about as often as in the general population." He said the aforementioned is similar to the amount of false domestic violence petitions that are filed, and opined that the masters and judges who hear domestic violence petitions do a good job of fettering out bogus domestic violence petitions. REPRESENTATIVE GRUENBERG surmised, then, that the factual determination regarding whether the individual has, in the past, committed an act of domestic violence would be a question of fact to be determined by the trier of fact. MR. BAILEY replied yes, the custody judge would determine whether domestic violence had been committed and whether it gives rise to the presumption. This wouldn't necessarily hinge upon a prior determination by another court. REPRESENTATIVE GRUENBERG also surmised that the decision would be made in the case at bar rather than as a negligence per se issue for which one simply brings a certified copy of an offense and this gives rise to a higher standard. Therefore, evidence of a court order could be brought in but, in and of itself, that wouldn't establish the fact. MR. BAILEY agreed. Number 1580 REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, as follows: Page 4, lines 7, Delete "only" Page 4, lines 7, after "by" Delete "clear and convincing" Insert "a preponderance of the evidence" CHAIR McGUIRE asked whether there were any objections to Amendment 1. There being none, Amendment 1 was adopted. REPRESENTATIVE GRUENBERG turned to subsection (k) on page 5, lines 1-2. He explained that he wished to add the following language to subsection (k): "unless the court finds that the effects of the domestic violence are detrimental to the parenting abilities of the parent." Representative Gruenberg said there might be a situation in which the person is so traumatized that they are psychologically or physically unable to parent the child. He clarified that in such a case, he wasn't suggesting that custody be given to the batterer, but rather that the court be able to consider whether a parent is incapable of caring for the child. Representative Gruenberg inquired as to Mr. Bailey's thoughts on including such language. MR. BAILEY remarked that there is a difference between having a person's parenting ability affected by abuse and having a person's ability to parent so profoundly affected that they are unable to safely parent. REPRESENTATIVE GRUENBERG specified that he is trying to get at the latter situation. MR. BAILEY suggested, then, that the language "safely" would be appropriate to use. He further suggested that the appropriate thing would be to obtain services for the abused parent so that he or she can parent effectively. He noted that there are cases in which the judge looks at both parents in order to determine who is worse. REPRESENTATIVE GRUENBERG then suggested the following language: "unless the court finds that the domestic violence renders the parent unable to safely parent the child". [This was treated as a motion to adopt Amendment 2.] CHAIR McGUIRE interjected that she would like to include the following language: "so severe". REPRESENTATIVE GRUENBERG clarified that [Amendment 2] would then read as follows: "unless the court finds that the effects of the domestic violence are so severe that they render the parent unable to safely parent the child". MR. BAILEY said he believes that language captures the essence of the real problem in families in which there has been significant abuse and problems [stemming from both parents]. MR. McCARTY said [Amendment 2] "is a bad result" when reading the whole of the statute, which addresses which parent is going to have the children. If one accepts the principle that domestic violence is fairly suggestive of parenting skills, then Amendment 2 seems to say "if you've damaged the other person enough, you will get to keep your kids as the battering person." Mr. McCarty opined that Representative Gruenberg's concern would be more appropriately addressed in the context of actions by child protection services. Therefore, Mr. McCarty said he believes [Amendment 2] could create a dangerous situation. Number 1239 REPRESENTATIVE GRUENBERG withdrew Amendment 2. REPRESENTATIVE GARA expressed concern because the unamended subsection (k) would still leave a circumstance in which a child wouldn't be safely placed with a parent and the court couldn't consider that. Domestic violence aside, the goal is to place the child in the best situation possible. However, domestic violence must be considered. Representative Gara explained that the problem with subsection (k) is that it says that the court can't consider that the remaining parent is not able to take care of his or her child because of the abuse. CHAIR McGUIRE relayed her belief that the court has a variety of tools at its disposable, and these are retained under [subsection] (c) on page 3, Section 4. MR. McCARTY said that the other factors, as specified in Section 4, clearly direct the court to look at the whole situation for the children. He pointed out that under [current] statute, the courts have the ability to appoint a guardian ad litem, a visitor, or attorneys to represent the children's interest. Mr. McCarty noted his fear of presumptions limiting the abilities of judges to make decisions. The judge is supposed to be reviewing what is in the best interest of the child through the factors listed. If the court determines that neither parent can [have custody of the child], then there are other options such as a guardian ad litem, an attorney, or a referral to child protective services. MR. BAILEY turned attention to page 4, line 8, and pointed out that [with the adoption of Amendment 1], there is a burden of overcoming the presumption by a preponderance of the evidence. There is also a list of factors that allow the presumption to be overcome, one of which is a diagnosed mental illness in the victim as well as the language "or because of other circumstances that affect the best interests of the child." Therefore, he opined, everything the judge needs is specified already. Number 1019 CHAIR McGUIRE inquired as to why subsection (k) [on page 5, lines 1-2] is necessary. MR. BAILEY explained that subsection (k) is necessary because in some cases there has been an assertion that women suffering from posttraumatic stress disorder as a result of the abuse are rendered incapable of safely or effectively parenting. However, that disorder is treatable. He further explained, "We're trying to avoid ... putting our cases into that 70 percent of contested custody cases involving batterers where they fair well enough to present a safety risk to their children." REPRESENTATIVE GRUENBERG pointed out that since not many judges [in Alaska] are family law practitioners, there are a number of judges who don't have much experience in family law and thus tend to read statutes very literally. Therefore, Representative Gruenberg expressed concern that subsection (k) could be used as an evidentiary rule to exclude evidence, which he didn't believe is the intention. Representative Gruenberg said that he wanted to be sure that [subsection (k)] isn't taken out of context and misread. "I don't want to reward the batterer; that is not my intent," he said. CHAIR McGUIRE inquired as to Mr. Bailey's opinion of inserting "sole" on page 5, line 2, such that it would read as follows: "does not constitute the sole basis for denying custody to the abused parent." MR. BAILEY opined that such would be an excellent solution to the problem. Number 0845 CHAIR McGUIRE announced that the committee [had before it] Amendment 3, as follows: Page 5, line 2, after "constitute" Delete "a" Insert "the sole" REPRESENTATIVE GARA said he wished there was no need for subsection (k) because all the other provisions of the legislation state the policy that domestic violence can't be used against one parent to the advantage of the other parent during a custody proceeding. By inserting the word "sole" [via Amendment 3], the court is being allowed to weigh the victimized parent's effects from the abuse more heavily than is probably desired. "By using the word 'sole' you would then allow a court that is on the fence as to which parent to grant custody to, [to] use the fact that the victimized ... parent suffers effects from the victimization as the thing that tips the scale and then denies custody to that parent; I don't think you want to do that," he said. CHAIR McGUIRE remarked, "It's the problem." REPRESENTATIVE GARA opined that in order to prevent the victimization from benefiting the party engaging in the abuse, it would be best to add the language ", provided the parent is able to safely care for the child" at the end of subsection (k). Therefore, the victimized parent would be awarded custody so long as he/she is able to take care of the child. He reiterated concern that use of the word "sole" would establish a situation in which that factor would be used against the victimized parent. CHAIR McGUIRE remarked that she didn't support removing subsection (k) in light of the statistics that specify that about 70 percent of the batterers use that argument as a basis for obtaining custody. She said she agrees with Representative Gara and threw it out as a compromise by saying that though it may not be the sole reason, it could be a reason. She opined, however, that Mr. McCarty is correct that including language specifying [the victimized parent] can't parent safely could say to the batterer to beat up the other parent enough so that he/she can't parent and thus the batterer would receive custody. REPRESENTATIVE GRUENBERG pointed out that the remedy for someone beating up someone is in the criminal sphere. If the intent is to look at the best interest of the child, the child needs to be placed with someone who can safely parent the child rather being held as a reward for the innocent person. Perhaps the child would have to go to a third party in a situation in which there is a batterer and a victim who are unable to parent the child. He informed the committee that Turner v. Panic (ph) says that to give a child to a third party one must show that the parents have abandoned the child, that the parents are unfit, or that the welfare of the child clearly requires that a third party be given custody of the child. REPRESENTATIVE GRUENBERG turned attention back to [Amendment 2] and suggested the inclusion of the following language: "unless the court finds that the domestic violence renders the parent unable to safely parent the child". CHAIR McGUIRE opined that [this latest version of Amendment 2] is probably the best compromise. Number 0441 REPRESENTATIVE GRUENBERG re-offered Amendment 2, as follows: Page 5, line 2, after "parent" Insert "unless the court finds that the domestic violence renders the parent unable to safely parent the child" Number 0432 CHAIR McGUIRE announced that Amendment 3 was withdrawn that and Amendment 2 was [back before the committee]. She asked if there were any objections to Amendment 2. There being none, Amendment 2 was adopted. The committee took an at-ease from 4:20 p.m. to 4:21 p.m. Number 0417 REPRESENTATIVE SAMUELS moved to report the proposed CS for HB 385, Version 23-LS1273\Q, Mischel, 2/27/04, as amended, out of committee with individual recommendations and the accompanying zero fiscal note. There being no objection, CSHB 385(JUD) was reported from the House Judiciary Standing Committee.
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