Legislature(2003 - 2004)

03/01/2004 01:10 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ 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                                                               
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                                                                    
     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                                                                    
     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                                                               
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                                                               
     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                                                                    
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
     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                                                               
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                                                               
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.                                                                           

Document Name Date/Time Subjects