Legislature(2009 - 2010)CAPITOL 120

03/22/2010 04:00 PM RULES

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04:06:43 PM Start
04:07:14 PM HB334
04:46:24 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSHB 334(RLS) Out of Committee
Scheduled But Not Heard
Bills Previously Heard/Scheduled
          HB 334-MILITARY DEPLOYMENT AND CHILD CUSTODY                                                                      
4:07:14 PM                                                                                                                    
CHAIR DAHLSTROM announced that the  first order of business would                                                               
be  HOUSE  BILL NO.  334,  "An  Act establishing  child  custody,                                                               
modification, and visitation standards  for a military parent who                                                               
is  deployed;  and  amending  Rule  99,  Alaska  Rules  of  Civil                                                               
Procedure."  [Before the committee is CSHB 334(JUD).]                                                                           
4:07:25 PM                                                                                                                    
REPRESENTATIVE  HERRON  moved  to  adopt CSHB  334,  Version  26-                                                               
LS1310\C, Mischel, 3/12/10, as the working document.                                                                            
REPRESENTATIVE NEUMAN objected for discussion purposes.                                                                         
4:08:04 PM                                                                                                                    
KACI SCHROEDER-HOTCH,  Staff, Representative Bill  Thomas, Alaska                                                               
State Legislature, speaking on behalf  of the prime sponsor of HB
334, Representative  Thomas, informed the committee  that Version                                                               
C includes several small technical changes.   On page 2, line 10,                                                               
the language  "an additional  10 days' notice"  was deleted.   On                                                               
page 2, line  11, the term "presumed" was replaced  with the term                                                               
"found" as  it is stronger and  clearer legal language.   On page                                                               
2,  lines 27-31  and  on  page 3,  lines  1-3,  the reference  to                                                               
"violent behavior"  is replaced  with the  rebuttable presumption                                                               
for domestic violence.  The provision  on page 5, lines 22-27, is                                                               
the indirect  court rule  amendment in order  to address  the two                                                               
sections  that  change  Civil   Rule  77(g)  regarding  expedited                                                               
hearings.  On page  5, lines 28-31 and on page  6, lines 1-2, are                                                               
conditional  effect provisions.    To change  a  court rule,  she                                                               
interjected,  it requires  a two-third  vote  in the  affirmative                                                               
from each house.                                                                                                                
4:09:30 PM                                                                                                                    
REPRESENTATIVE   KERTTULA  surmised   then   that  the   original                                                               
legislation would've  required 10-day notice to  the non deployed                                                               
MS.  SCHROEDER-HOTCH   explained  that  the  intent   is  for  an                                                               
individual to have an expedited  hearing prior to being deployed.                                                               
Civil  Rule   77  already   addresses  the   aforementioned,  and                                                               
therefore the additional 10-day notice would slow the process.                                                                  
4:10:06 PM                                                                                                                    
CHAIR DAHLSTROM mentioned that  the aforementioned was thoroughly                                                               
discussed in  the House Judiciary  Standing Committee and  it was                                                               
the intent of that committee to address that matter.                                                                            
4:10:20 PM                                                                                                                    
REPRESENTATIVE  GARDNER  related  that  she is  troubled  by  the                                                               
element of  delegation of  visitation.  She  opined that  a child                                                               
has  a right  to  family  on both  sides,  particularly when  the                                                               
parents are  separated.  A  child, she emphasized, isn't  like an                                                               
inheritance.  A  child, first of all, has a  right to the parent.                                                               
Therefore, in a situation in  which parents share custody or have                                                               
a  visitation   agreement  the  child  should   remain  with  the                                                               
available  parent, she  opined.   The parental  right trumps  the                                                               
right of another family member to have time with the child.                                                                     
CHAIR   DAHLSTROM   said   that    although   she   agreed   with                                                               
Representative  Gardner's intent,  the  House Judiciary  Standing                                                               
Committee  discussed other  circumstances that  could surround  a                                                               
divorce or separation  of the parents.  She  asked Ms. Schroeder-                                                               
Hotch to elaborate on the  discussion held in the House Judiciary                                                               
Standing Committee.                                                                                                             
MS. SCHROEDER-HOTCH told  the committee that courts  in the Lower                                                               
48 have dealt with this fairly  extensively and treated it "as in                                                               
the parent's  stead."  For  instance, if a  dad has custody  of a                                                               
child every  other weekend  and he  wants to go  to the  gym, the                                                               
grandmother can watch  the child.  The courts  have been treating                                                               
this  situation with  deployed parents  in  that fashion  because                                                               
when  a  parent   is  deployed  it's  a   special  and  temporary                                                               
circumstance.  The courts have  decided that the contact with the                                                               
deployed parent's  family is crucial.   She emphasized  that this                                                               
is  not   grandparent  visitation   or  custody.     She  further                                                               
emphasized that the best interest  of the child is the prevailing                                                               
guideline, and therefore if it's not  in the best interest of the                                                               
child to have a delegation of visitation, it won't occur.                                                                       
4:13:26 PM                                                                                                                    
REPRESENTATIVE GARDNER  recalled her experience as  a guardian ad                                                               
litem  when she  advocated  in  the court  for  the child's  best                                                               
interest.  Therefore,  she said she's very familiar,  in terms of                                                               
child protection  issues, with  the context  of the  child's best                                                               
interest.   Representative  Gardner opined  that when  one parent                                                               
isn't available,  the child  should be  with the  other available                                                               
parent.     She  expressed  hope  that   competent  parents  will                                                               
understand  and promote  a relationship  with the  other parent's                                                               
family  as  it's  in  the  child's best  interest.    Still,  the                                                               
available  parent should  be first  in line  if the  other parent                                                               
isn't available.   To that end, she suggested  that the custodial                                                               
parent should make the decision  about the relationships with the                                                               
rest of the family rather than the court.                                                                                       
4:15:02 PM                                                                                                                    
CHAIR DAHLSTROM  recalled the discussion  in the  House Judiciary                                                               
Standing Committee in  which it was brought out that  in an ideal                                                               
world that would happen.   However, since that hasn't always been                                                               
the case  and families  have had  to go to  court because  one or                                                               
both of the  parents couldn't agree and  deployment is happening,                                                               
the issue needs to be addressed.                                                                                                
4:15:29 PM                                                                                                                    
REPRESENTATIVE  GARDNER acknowledged  that the  situation can  be                                                               
difficult and  hateful in  these cases.   When there  is conflict                                                               
between  the parents,  the  parents  have representatives,  child                                                               
custody investigators  and perhaps a  guardian ad litem  would be                                                               
appointed to  provide a recommendation  as to what's in  the best                                                               
interest of  the child.   Representative Gardner  maintained that                                                               
the available  parent should make  that decision rather  than the                                                               
court,  the legislature,  or an  appointed guardian  ad litem  to                                                               
decide what's best for the child if one parent isn't available.                                                                 
4:16:31 PM                                                                                                                    
REPRESENTATIVE  HERRON informed  the  committee  that during  the                                                               
House  Judiciary Standing  Committee hearing  it had  to consider                                                               
the  differences  between  individuals   who  are  "about  to  be                                                               
deployed" and  individuals who are  "deployed," which led  to two                                                               
different standards being  placed in the legislation.   He opined                                                               
that the aforementioned is why HB  334 is a military parent piece                                                               
of  legislation.   She requested  further clarification  from Ms.                                                               
MS.  SCHROEDER-HOTCH  explained that  the  about  to be  deployed                                                               
parent would want to expedite  hearings and ensure that the child                                                               
will have  proper care while  the deployed  parent is away.   The                                                               
deployed  parent would  be addressing  the situation  while away,                                                               
which  is  why  the  legislation has  a  provision  allowing  the                                                               
deployed  parent   to  testify   electronically.     She  further                                                               
explained that  the parent  who's about to  be deployed  needs to                                                               
have the  hearing while  present and  the parent  that's deployed                                                               
has to have the opportunity to testify while away.                                                                              
4:18:33 PM                                                                                                                    
REPRESENTATIVE  NEUMAN  inquired  as  to  who  decides  the  best                                                               
interest of the child.  He  then inquired as to the definition of                                                               
MS.  SCHROEDER-HOTCH answered  that in  this case  a judge  would                                                               
decide what's in  the best interest of the child.   A child would                                                               
generally  be an  individual  under the  age of  18  or would  be                                                               
extended if  the individual is  incapable of making  decisions or                                                               
is developmentally delayed.                                                                                                     
4:19:49 PM                                                                                                                    
REPRESENTATIVE NEUMAN  inquired as what happens  in situations in                                                               
which the child,  perhaps a 17-year-old, doesn't want  to go with                                                               
the other [non deployed] parent.                                                                                                
MS. SCHROEDER-HOTCH  recalled that the  judge will factor  in the                                                               
opinion of a child age 12 or 13.                                                                                                
4:20:10 PM                                                                                                                    
REPRESENTATIVE NEUMAN  surmised then that the  judge would render                                                               
the opinion for a  child, even if the child didn't  want to go to                                                               
the other  [non deployed]  parent if the  child was  younger than                                                               
12-13 years of age.                                                                                                             
MS. SCHROEDER-HOTCH  answered that's correct, but  added that the                                                               
judge will take into account  the child's opinion when making the                                                               
best interest  finding.  The  best interest findings have  a list                                                               
of factors that  judges consider.  When the child  is pre-teen or                                                               
teen,  the child  can  testify  and tell  the  judge what  he/she                                                               
wants.  Although  the child's wishes will be  considered, it will                                                               
not be the determining factor.                                                                                                  
4:20:46 PM                                                                                                                    
REPRESENTATIVE  NEUMAN  expressed   concern  with  this  proposed                                                               
expedited situation  in which the judge  is making determinations                                                               
because  a child,  age 17,  could be  placed with  a parent  with                                                               
which  the   child  doesn't   want  to  be.     At   this  point,                                                               
Representative  Neuman didn't  believe  the  aforementioned is  a                                                               
good idea.                                                                                                                      
MS.  SCHROEDER-HOTCH opined  that if  a  judge were  to issue  an                                                               
expedited hearing in  the aforementioned case and  finds the case                                                               
to be too  complicated, the judge would likely  issue a temporary                                                               
order to  allow time to make  a final determination.   In further                                                               
response to Representative Neuman,  Ms. Schroeder-Hotch said that                                                               
the aforementioned isn't specifically in  HB 334, but it's how it                                                               
4:23:10 PM                                                                                                                    
REPRESENTATIVE  MILLETT  said  that she  respects  Representative                                                               
Gardner's opinion.  However, she  related that in her own family,                                                               
which is  Native and  non Native,  it becomes  an issue  when one                                                               
parent is  unreasonable and the  deployed parent wants  the child                                                               
to  have exposure  to his/her  culture.   She  surmised that  the                                                               
aforementioned  situation   could  arise  related   to  religious                                                               
cultures as well  as family traditions and  lifestyles.  Although                                                               
she said  she understood a  non deployed parent having  the first                                                               
right   of   refusal  when   the   other   parent  is   deployed,                                                               
Representative Millet also understood  the deployed parent's wish                                                               
to  have  continuity  regarding how  the  deployed  parent  would                                                               
parent and to  what he/she would expose the child.   She said she                                                               
could foresee  a situation  in which  an unreasonable  parent who                                                               
doesn't  particularly care  about the  cultural, traditional,  or                                                               
religious issues of the other  parent could be detrimental to the                                                               
child.    Therefore,  having a  deployed  parent's  wishes  known                                                               
regarding visitation is appropriate.   Representative Millet said                                                               
she understood  the need  for HB  334 and  characterized it  as a                                                               
safety net for parents who are deployed.                                                                                        
4:25:49 PM                                                                                                                    
REPRESENTATIVE  GARDNER  said  she  understands  those  concerns.                                                               
Then she inquired as to  the difference between visitation rights                                                               
and shared custody.  She posed  a situation in which parents with                                                               
shared custody  of a two-year-old  can't agree and  require court                                                               
intervention.   In this scenario  the mom is amenable  to sending                                                               
the child to  the dad for six  months and the dad  is amenable to                                                               
sending the child to the mom for  six months.  When one parent is                                                               
deployed, would  the child  have to be  sent to  another relative                                                               
for six months, she asked.                                                                                                      
MS. SCHROEDER-HOTCH replied yes, if  the judge orders it as such.                                                               
However,  another  provision in  HB  334  provides for  temporary                                                               
orders such that while the  custodial parent is away, a temporary                                                               
order  can be  issued to  allow the  other parent  custody.   The                                                               
temporary  order would  expire once  the deployed  parent returns                                                               
from  deployment.    The  aforementioned   would  likely  be  the                                                               
preferable method so long as the noncustodial parent is "okay."                                                                 
4:27:10 PM                                                                                                                    
REPRESENTATIVE GARDNER noted that  she remains confused regarding                                                               
the  distinction  between visitation  and  shared  custody.   She                                                               
asked if there is a maximum  time of visitation that a very young                                                               
child might be sent to someone other than a parent.                                                                             
4:27:55 PM                                                                                                                    
JEAN MISCHEL, Attorney, Legislative  Legal and Research Services,                                                               
Legislative Affairs  Agency, began  by explaining that  there are                                                               
at least  three types of  custody: legal, physical, and  joint or                                                               
shared.    The  visitation  rights are  irrespective  of  custody                                                               
rights.    Therefore, a  parent  could  have a  visitation  right                                                               
without any  form of  custody or a  parent could  have visitation                                                               
rights  with  custody.   This  legislation  allows  the  deployed                                                               
parent to delegate  only the visitation rights  not the custodial                                                               
interest  that  they  retain  over the  child.    The  visitation                                                               
wouldn't involve decision making or  a parental role of any sort.                                                               
The family  member being delegated  visitation rights  would have                                                               
no educational,  religious, or  other rights.   The  parent would                                                               
have  a  visitation order  providing  visitation  rights to  [the                                                               
deployed] parent prior to delegating  the right.  Therefore, this                                                               
is a  situation in which  a parent  who already has  a visitation                                                               
order,  with  or  without  custody,  that  says  he/she  will  be                                                               
[deployed] and would like to  grant his/her visitation time while                                                               
deployed  to   a  family   member  that   already  has   a  close                                                               
relationship  with the  child.   Assuming that  the other  parent                                                               
opposes that, the  court would have to weigh the  interest of the                                                               
two parents in  maintaining access to and enjoyment  of the child                                                               
as well  as weigh the  best interest of the  child.  In  Lower 48                                                               
cases of  deployed parent  delegations the  court has  shown that                                                               
it's not the same as a third  party petitioning a court to take a                                                               
child away  from the available  parent.  There is  the assumption                                                               
that  there is  already access  to that  family member,  there is                                                               
already a visitation  order to the deployed parent,  and there is                                                               
a reason the  deployed parent wants the child  to have continuing                                                               
contact  with the  family member.   The  courts have  articulated                                                               
that  the  non deployed  and  the  deployed parent  have  similar                                                               
rights.   No  one is  able  to tell  a non  deployed parent  with                                                               
physical custody of a child not  to leave the child with a person                                                               
that doesn't  harm the  child.  Parents  have inherent  rights in                                                               
raising  their  child,  she  highlighted.    The  intent  of  the                                                               
provision  and the  reason  it has  been upheld  thus  far is  to                                                               
equalize   the  interests   of   both  parents.     Ms.   Mischel                                                               
acknowledged  that it's  a  policy call  for  the legislature  to                                                               
make,  but  pointed out  that  both  parents have  constitutional                                                               
interest in  directing the care  and custody of their  own child.                                                               
Therefore, mutual interests are at stake.                                                                                       
4:32:47 PM                                                                                                                    
REPRESENTATIVE  GARDNER remarked  that  although the  legislation                                                               
has  language regarding  the child's  best  interest it's  really                                                               
about the  parents' interest.   She emphasized that since  she if                                                               
fully  committed to  the child's  interest,  this legislation  is                                                               
difficult for her.                                                                                                              
4:33:13 PM                                                                                                                    
CHAIR  DAHLSTROM said  that she  sympathizes with  Representative                                                               
Gardner because  if only the  rights of the child  were reviewed,                                                               
this legislation wouldn't be necessary.                                                                                         
4:33:37 PM                                                                                                                    
REPRESENTATIVE  GARDNER posed  a  scenario in  which two  parents                                                               
have shared  legal custody  of their two  children, one  of which                                                               
who isn't  in school  and one  who is in  school.   The agreement                                                               
between  the parents  is that  the  parent who  doesn't have  the                                                               
children through  the school  year has  the children  all summer.                                                               
If the parent  who has the child in the  summer is deployed, that                                                               
parent could  for the summer  delegate the care of  both children                                                               
to another relative.  Therefore,  the situation is one that hangs                                                               
on whether  a custody investigator,  guardian ad litem,  or judge                                                               
determines it's in  the best interest of the children  to be with                                                               
relatives for the summer.  The  other parent who has the children                                                               
during the school year doesn't get to make the decision.                                                                        
MS. MISCHEL indicated that could occur under this legislation.                                                                  
4:34:54 PM                                                                                                                    
REPRESENTATIVE NEUMAN inquired  as to the location  of the rights                                                               
of a child in this legislation or existing law.                                                                                 
MS.  MISCHEL answered  that existing  statute don't  specifically                                                               
articulate [the  rights of  a child] other  than that  the courts                                                               
shall consider a child's preference after age 14.                                                                               
4:36:09 PM                                                                                                                    
REPRESENTATIVE  NEUMAN surmised  then that  those children  under                                                               
age 14 don't have a say [in terms of their placement].                                                                          
MS.  MISCHEL related  that courts  have determined  that children                                                               
have  constitutional  rights in  many  contexts.   However,  that                                                               
doesn't appear  in this  legislation specifically,  although it's                                                               
implied that HB 334 doesn't  invalidate any constitutional rights                                                               
that  children share  with adults  as citizens  of the  U.S.   In                                                               
custody disputes, other than the  stated preference provision for                                                               
children  age 14  and older,  courts are  required to  review the                                                               
physical, mental,  emotional, religious, and social  needs of the                                                               
child through evidence  brought to the court as well  as the love                                                               
and affection  existing between the  child and each parent.   Ms.                                                               
Mischel  stated  that  a  right is  an  extremely  general  term.                                                               
Although children do  have constitutional rights in  the U.S. and                                                               
Alaska, the courts  are restricted in how much they  can defer to                                                               
a child's wishes when there is  a best interest finding, based on                                                               
the evidence provided, to the contrary.   As we all know children                                                               
aren't always able  to articulate their own needs  and the courts                                                               
have had to step in to family disputes and make a determination.                                                                
4:38:52 PM                                                                                                                    
REPRESENTATIVE  NEUMAN asked  if there  is  a way  to review  the                                                               
rights of the child in terms of their placement.                                                                                
MS.  SCHROEDER-HOTCH said  that  issue didn't  come  up in  prior                                                               
discussions  of  the  legislation.    Although  she  agreed  that                                                               
placing a  child in  a home the  child doesn't want  to be  in is                                                               
something to consider, it's a  larger custody issue that's beyond                                                               
the parameters of this legislation.                                                                                             
4:40:12 PM                                                                                                                    
REPRESENTATIVE HERRON directed  attention to page 2,  line 1, and                                                               
pointed out that the rights of  the child are consistent with the                                                               
protections afforded under federal  law.  The federal government,                                                               
he related,  wants each individual state  to accommodate military                                                               
parents and their dependents.   Therefore, each state has statute                                                               
that  includes  these  protections  for those  in  the  military,                                                               
specifically the military dependent.   He suggested that there is                                                               
specific   [federal]   legislation    to   accommodate   military                                                               
MS.  SCHROEDER-HOTCH  responded  that  the  Servicemembers  Civil                                                               
Relief  Act generally  has to  do with  delaying certain  actions                                                               
while  a  servicemember  is  deployed.     Therefore,  one  can't                                                               
foreclose on  a deployed servicemember home,  repose his/her car,                                                               
or sue  for child custody.   The  servicemember has the  right to                                                               
request a delayed  hearing until he/she returns.   The difference                                                               
in HB 334 is that it provides for an expedited hearing process.                                                                 
MS. MISCHEL highlighted that the  Servicemembers Civil Relief Act                                                               
is  specifically for  the benefit  of the  servicemember and  not                                                               
much of  it deals  with custody and  care of  the servicemember's                                                               
child.  The Act  is an attempt to maintain the  status quo in all                                                               
aspects of the servicemember's life.   Therefore, she opined that                                                               
there aren't provisions specifically for a child's rights.                                                                      
CHAIR DAHLSTROM recalled  that the sponsor felt that  the lack of                                                               
provisions  specifically for  [the  child] is  why  he felt  this                                                               
legislation is necessary.                                                                                                       
4:42:34 PM                                                                                                                    
REPRESENTATIVE MILLETT  pointed out  that sometimes what  a child                                                               
wants  is  different  than  what's   in  his/her  best  interest.                                                               
Furthermore, sometimes  a child knows something  isn't in his/her                                                               
best interest,  perhaps the  lack of  parenting from  one parent,                                                               
and that's precisely why the child pushes for that.                                                                             
MS.  MISHEL stated  that  the aforementioned  is  the reason  for                                                               
judicial  review  and  relief  in  these  cases.    Additionally,                                                               
children  are uniquely  susceptible to  coercion by  a parent  or                                                               
another adult.                                                                                                                  
4:43:44 PM                                                                                                                    
REPRESENTATIVE  NEUMAN withdrew  his objection.   There  being no                                                               
further objection, CSHB 334, Version C was adopted.                                                                             
4:43:58 PM                                                                                                                    
REPRESENTATIVE  GARDNER  inquired  as   to  the  meaning  of  the                                                               
language on page 5, line 2.                                                                                                     
MS. MISCHEL explained that Section  3 amends existing statute, AS                                                               
25.24.150,  which describes  what the  courts shall  determine in                                                               
making a best  interest finding.  The statute includes  a list of                                                               
nine factors that  a court shall consider.   Existing statute, AS                                                               
25.24.150(c)   limits  the   consideration  of   modification  or                                                               
awarding a petition  of custody to the  factors already specified                                                               
and  doesn't allow  the court  to use  deployment as  one of  the                                                               
relative factors.                                                                                                               
4:46:07 PM                                                                                                                    
REPRESENTATIVE  HERRON  moved to  report  CSHB  334, Version  26-                                                               
LS1310\C,  Mischel, 3/12/10,  out  of  committee with  individual                                                               
recommendations and the accompanying fiscal notes.  There being                                                                 
no objection, CSHB 334(RLS) was reported from the House Rules                                                                   
Standing Committee.                                                                                                             

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