Legislature(1995 - 1996)
09/21/1995 07:15 PM Senate HES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 156 MANDATORY MEDIATION:CHILD CUSTODY ISSUES
CHAIRMAN GREEN called the Senate Health, Education and Social
Services (HESS) Committee to order in the Mat-Su Legislative
Information Office at 7:15 p.m. However, due to the lack of a
quorum, she stated the meeting would be considered a work session
on SB 156.
CHAIRMAN GREEN explained she sponsored the legislation at the
request of the Victims of Custody and that it was introduced to
help families involved in child custody disputes resolve their
differences regarding child custody through mediation, a more
relaxed and less costly process.
The legislation proposes to change current mediation law in the
following ways:
1. It requires a court to order mediation of child custody
disputes with an exception for extraordinary circumstances to cover
situations where mediation might not be appropriate;
2. It expands the mediation requirement to include
modification actions;
3. It allows the parties to choose the mediators; if there is
no agreement, then the court may appoint up to three mediators from
specified fields of expertise;
4. It extends the time period for mediation from 30 days to
90 days;
5. It requires an award of custody to the cooperative party
if there is a noncooperative party, unless the court finds that
this would not be in the best interest of the child or the
children;
6. It requires an award of custody as agreed by the parties
unless the court finds that this would not be in the best interest
of the child or children; and
7. It allows the court to assess the costs of mediation
according to the financial resources of the parties and whether
they participated in mediation with good faith.
SB 156 also amends the current statute on custody modification
actions in the following ways:
1. It requires a court to accept mediated modifications of
custody or visitation without the need to show a change in
circumstances unless the court finds that the modification would
not be in the best interest of the child or children;
2. It provides that relocation of a child constitutes a
change of circumstances for purposes of modification of a child
custody award that involves shared physical custody; the extent of
modification would still have to be mediated; and
3. It provides that denial of visitation constitutes a change
of circumstances for purposes of modification of a child custody
award that involves visitation rights; the extent of modification
would still have to be mediated.
In addition, the legislation clarifies that the changes in this
bill apply to petitions for child custody or for modification of
child custody awards that are filed on or after the effective date
of the legislation.
Concluding her overview on the legislation, CHAIRMAN GREEN said SB
156 will help families with child custody disputes by providing a
mandatory mediation process instead of a costly and often
confrontational custody hearing in court. Mediation offers
families a helping hand through the process and often saves all
parties time, money and unnecessary stress and anxiety.
Number 060
CAROL PALMER, Advisory President of Victims of Custody, a parent
support group, that deals with the issues of child custody,
visitation and child support, said she has taken over 200 phone
calls from all over the state, and there is one common, consistent
element in each: each call deals with someone else who's
controlling, domineering, manipulative, harassing and vindictive
towards each family member, especially the noncustodial parent.
Ms. Palmer said the only means our society has to deal with child
custody and visitation at this point in time is court documents
with a hired attorney and a court hearing, and she doesn't believe
there is any justice or fairness in our system when each parent
hires an attorney who battles the opposing attorney. These court
documents are full of half truths, distorted facts, lies and
slander in order to gain custody of the children. Unfortunately,
the children become pawns in this situation. The noncustodial
parent and their children fall under the control of the other
parent. She noted that she is a victim in this same type of
controlled situation.
Ms. Palmer pointed out that with the present system, a parent
cannot get back into the custody review unless there is substantial
change of circumstances, and, without a substantial change of
circumstances, there is no recourse to voice her concerns regarding
the custody of her own child and visitation. Mediation, as
provided in SB 156, would give her and others a recourse to deal
with their individual custody and visitation battles and
situations.
Ms. Palmer also spoke to the costly financial responsibilities that
are automatically assumed by the noncustodial parent, especially if
the children are out of state or out of town. Mandatory mediation
would give a preferred and more peaceful means of resolving these
issues by allowing both parties and the children over age 12 to
equally participate in mediation, voice their concerns and to work
out an agreement that is good for all.
In her closing comments, Ms. Palmer urged passage of SB 156.
Number 105
SANDY HORNAL, Vice President of Victims of Custody, said she knows
that she and others like herself wouldn't be experiencing the
problems they have had if they were able to go through mediation.
Ms. Hornal was married for approximately 10 years and had three
children. When she and her husband separated, they were going to
go through a simple dissolution of their marriage, and he said he
didn't want custody of the children. During their marriage he had
a drug and alcohol problem and didn't spend much time with his
children. Because she had a good job and had basically been the
sole provider during the marriage, she felt she could provide for
her children without child support. However, in petitioning the
court for no child support, they were told that couldn't be done,
so they went ahead and signed a child support guideline.
Ms. Hornal said one summer, before the dissolution was finalized,
her husband decided he wanted to keep the children for the summer,
which she agreed to because she felt the children needed to spend
time with their father. However, he then hired an attorney who
advised him to quit his job while he had the children for summer
visitation and go on welfare. If he could gain custody of the
children, he would get a welfare check, as well a child support
check from her.
Ms. Hornal had a child investigation done and through the whole
child investigation she was clearly proven to be a better parent
for these children, but when they went to court he was awarded
primary custody of the children because the judge felt the father
could spend more quality time with the children because he didn't
work and was on welfare. The judge ignored the fact that the
children wanted to be with their mother, and that when they were
with their father they spent most of their time sitting around the
house watching television or playing Nintendo.
Ms. Hornal said that if there had been the option for mandatory
mediation and she could have sat down with her ex-husband, even as
vicious and mean as she thinks he is, she believes somehow they
could have come to some kind of conclusion where they could share
the custody of the children equally instead of him being given 9
months custody and she only three months custody during the summer.
Number 235
CHAIRMAN GREEN asked Ms. Hornal if there was anything in the
legislation that she would like to see changed. MS. HORNAL
responded that the only change she thought should be made was to
subsection (b) on page 2 and the sentence "The parties of an action
and a court-appointed representative of the minor children shall
attend." She suggested amending it to read that a 12-year old or
older would be able to go into mediation without the representative
and have his own say.
Number 255
SHARON MARTIN requested that a provision be added to SB 156
requiring mandatory mediation of custody disputes or visitation of
the mentally and physically handicapped over the age of 18 years
who are in custody under the state, foster homes, or family
members. She thinks mediation for any of these group would
probably save a lot of time, money and aggravation.
Number 267
CHAIRMAN GREEN asked if that would be primarily to serve the family
of the person mediating with the state agency. MS. MARTIN
responded it may be biological family versus the state, or
biological family versus family, or even possibly foster homes
versus families or state, etc. SENATOR GREEN said she thought this
was an area the legislative legal division would have to look to
determine if this bill was the appropriate vehicle for her
suggested amendment.
Number 290
ROBERT SHUMAKER stated his support for mediation because the
current system is a win/lose system. If mediation is done
correctly, it draws both parties into the process and it usually
comes up with a good resolution that they both are happy about and
is better for the children.
Mr. Shumaker noted that Drew Peterson, an Anchorage attorney, is
one of the most well-known supporters of meditation in the state,
and he believes this is the only avenue for family disputes over
children.
Number 326
CHAIRMAN GREEN asked Mr. Shumaker if in the courses he has taken as
a paralegal, he can think of any group or person who might oppose
mediation. MR. SHUMAKER responded one group would be the
attorneys. He also pointed out that in her sponsor statement she
said a change in the current mediation law would require a court to
order mediation of child custody disputes with an exception for
extraordinary circumstances. He said he has found that words like
"extraordinary circumstances" are real problems, and when dealing
with something like domestic violence, and in reference to this
mediation bill, he could see some problems cropping up. He also
thinks the Women Resource Centers would oppose this.
MR. SHUMAKER also commented that reference was made to a 12-year-
old being part of mediation, but he is not sure that it is
appropriate for children to be in on these decisions. He believes
that the key is having the two adults as part of that mediation
process.
Number 430
LEONARD MOFFITT urged the passage of SB 156, and, if necessary, to
fine tune it later. He would like to see parents mediate on how
much they are going to contribute to the support of their children,
with each parent contributing an equal amount. He said both
parents are equally responsible, and the courts should not be
involved in the process.
Number 490
CAROL PALMER, in responding to earlier comments, said Victims of
Custody has talked to Senator Green about some wording being
changed relating to a court ordered representative for the
children. She said she knows her own child who is 13 1/2, would
like to speak on his behalf concerning his own life and his own
future, and he doesn't like the fact that he is being denied that
say so in this process, whether it is in court or in mediation.
She believes that children 12 year of age and older have a right to
speak on their own behalf.
Ms. Palmer also noted she has taken mediation training that is
available through the University of Alaska, Anchorage, and she
believes mediation can be handled in a mediation session when the
mediator is skilled and knows how to handle it.
Number 525
CHAIRMAN GREEN announced that if anyone has additional comments
they could submit them to the committee and they would be included
in the record. She also said the committee will continue working
on the bill and the drafting of a possible committee substitute for
consideration in early January.
There being no further testimony on SB 156, CHAIRMAN GREEN
adjourned the meeting at approximately 7:55 p.m.
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The following letter was received from Pamela Sandvik of Wasilla
for inclusion in the record:
"I was unable to attend the 9-21-95 public hearing regarding SB
156: mandatory mediation, due to another commitment. However, I am
highly concerned about the matter and the potentially dangerous
situations this legislation will create.
Domestic violence is a very real threat, not only to women, but to
the children raised in these families. In fact, in over 65 percent
of families where spousal abuse is present, child abuse also
occurs. Mandating thee women to have forced contact with a violent
partner creates the opportunity for further violence and even
murder.
I urge you to consider all sides of this issue and think about the
potentially negative side effects of such a law. If you still
believe this is a valuable and necessary piece of legislation, I
would like to suggest an amendment. Create within SB 156 an
exemption clause for families who have experienced or are
experiencing domestic violence (or sexual assault).
I believe that you want to do the right thing for our families. I
believe that you care and hope to create positive change in our
community. I urge you and other law makers to look at al sides of
this issue. I trust you will make the right decision."
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The following letter was received from Marilyn Mead of Salisbury,
N.C. for inclusion in the record:
"In Montana, I lost custody of my two boys during their visit
Christmas 1994; to a physician father who is now living in
Talkeetna, AK. This man admitted 1) child abuse: 1981 to 1987;
1981 marriage counselling due to domestic violence, 1987 counseling
due to charges by DSS and 2) multiple psych. interventions over a
12-year period: med. school '80-81; needing a lawyer to graduate;
internship '81; psych. hosp. '89, outpatient several years
following. Mandatory evaluations for drug abuse include '87, '89
and '91. Presently he notes relying on his wife (they met while
patients in an alcohol/drug facility '91) to monitor emotional
balance related to PTSD and depression as a Korean war orphan and
later an abused child in his adopted family. Despite Jim's court
order for my 5-day inpatient evaluation 7/94; I came up healthy and
have no such history. The treatment staff kept asking how could
this man pull off such an evaluation with no evidence?
I had custody of the boys during the 3 1/2 year court battle
following Jim's exit in April 1991 from us with his fiance. The
Montana trial was held August 1994 with the decision made on
December 23, 1995. On December 21, 1994, while awaiting the
judge's decision, the boys were flown to Alaska for a court ordered
visit; December 23, 1994 I learned the boys would not return and a
child support check was due in two weeks; $450+ monthly. Any
future visits dependant on prompt payments.
By now, September 1995, the hospital board of Seward, Alaska
unanimously voted to terminate Jim's contract 5 months early (again
consistent of employment history). He's filed bankruptcy. The
family moved to further isolation in Talkeetna. Their second child
of present marriage died at age 6 months of "rare SIDS". I have
been denied details of any events. The boys are now advocates for
their dad and I do not hear from them... except stilted
conversations which Jim has threatened to terminate. I continue
writing to my boys biweekly. I wrote to the Judicial Standards
Committee in MT and they reviewed the case; nothing. Court appeals
are costly and time consuming and the court reflects bias toward
the father.
The entire court proceedings did not consider the boys' emotional
well being. The judge arranged their first summer stay with Dad
prior to the trial. He condoned a secrete evaluation of the boys
in June by the court appointed psychologist (Dr. Harper) for the
father. I learned of this evaluation August 15 despite paying for
half of the evaluation. This parent brought the boys to trial
following 2 months of "assurance" they had never really been
abused, in-home church services led by Dad, (the preacher) and
assurance of their return to Alaska after the trial. His present
psychiatrists stated parenting skills were "not impaired" at this
time with significant medication and therapy. The judge failed to
look at research concerning child adjustment living under
discipline of an abusive parent; their intense desire to believe
the abuser, and believe the abuse never really happened. The judge
failed to look at community support systems and resources where
this father would be living. Where would these children turn
should Daddy relapse? The judge refused to allow N.C. jurisdiction
despite the children living there 3 1/2 years prior to the trial
where their adjustment could have been evaluated. The judge failed
to respect the boys' need to say good bye to friends and
connections they had developed those years. The judge denied the
value of this mother's relationship with her sons in good-byes or
communication.
My biggest anguish is I cannot protect my children as their father
moves into more isolation, geographically, spiritually, and
socially. He encourages feelings of hate and fear toward others.
The judge's court decision and method of notification of the
decision has taught the boys they had best believe their father.
I encourage hearings to review such atrocities as parents with
history of abuse and significant emotional instability gaining
primary custody with no conditions. Surely public officials
putting their heads together in a bipartisan effort can figure out
a humane way to validate both parents' role in the children."
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