Legislature(2003 - 2004)

04/27/2004 08:15 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
              CSHB 385(JUD)-AWARDING CHILD CUSTODY                                                                          
                                                                                                                                
REPRESENTATIVE  LESIL  McGUIRE,  sponsor  of  HB  385,  gave  the                                                               
following explanation of the measure.                                                                                           
                                                                                                                                
     Just to let you know  that whenever the words 'domestic                                                                    
     violence'   come  into   play,   I   think  it   raises                                                                    
     everybody's awareness and we get  on notice and we want                                                                    
     to  figure out  what the  bill says.  In the  House, it                                                                    
     passed out just fine through  all of the committees and                                                                    
     through  the  floor but  leading  into  the floor  vote                                                                    
     itself, there  were a  couple of  members that  came to                                                                    
     me, similar  to it  sounds like what  is going  on here                                                                    
     where  they  read  the  title, looked  at  it,  had  an                                                                    
     understanding  of it  that was  inaccurate, and  once I                                                                    
     was able to  explain what the bill did,  it passed with                                                                    
     flying colors. So,  let me try to walk  you through how                                                                    
     this plays out.                                                                                                            
                                                                                                                                
     Obviously,  the issue  of awarding  child custody  is a                                                                    
     very sensitive  issue and it's  something that  most of                                                                    
     us have  had a  friend or a  relative or  a constituent                                                                    
     that  has dealt  with  a child  custody situation  that                                                                    
     hasn't  gone well  or we've  at least  heard about  one                                                                    
     where  the perception  has been  that a  judge unfairly                                                                    
     gave sole  custody to one  or split joint  custody when                                                                    
     they shouldn't have.                                                                                                       
                                                                                                                                
     Mr. Chairman, as  you well know, similar  to a divorce,                                                                    
     a child  custody situation, when  parties come  away, I                                                                    
     think,  everybody  feels like  they  lost  most of  the                                                                    
     time. So  the judge  is in  an interesting  position in                                                                    
     awarding  joint  custody.  This  bill  deals  with  the                                                                    
     factors that  should be considered when  awarding joint                                                                    
     custody.  Obviously,  Mr.  Chairman, I  support  and  I                                                                    
     think most people  do support the notion  that when the                                                                    
     unfortunate situation occurs where  a family can't stay                                                                    
     united, that  to the very best  of everybody's ability,                                                                    
     the mother  and the father  ought to split  the custody                                                                    
     of that child  and have the opportunity  for the child,                                                                    
     despite  the fact  that they  don't have  their nuclear                                                                    
     family  together,  to have  an  opportunity  to have  a                                                                    
     father  and a  mother growing  up.  So that  is at  the                                                                    
     heart  of and  the root  of  my philosophy  and what  I                                                                    
     believe in  and so this bill  is not any attempt  to go                                                                    
     against that philosophy.                                                                                                   
                                                                                                                                
     What  this bill  does is,  Mr. Chairman,  there are  23                                                                    
     other   states  that   have  adopted   friendly  parent                                                                    
     legislation. This  was brought to me  by a constituent.                                                                    
     She's the  president of the  PTA in my  district, Paige                                                                    
     Hopson,  and  she  should  be  on  the  line,  and  her                                                                    
     attorney Alan Bailey,  who is a family  law attorney. I                                                                    
     think he's  traveling today  and can't  be on  the line                                                                    
     but has testified  in the past and I  can summarize his                                                                    
     interest. He's  a family law practitioner  who works in                                                                    
     this area  and worked with  Paige on this  bill. What's                                                                    
     been  happening  in  cases   where  there  is  domestic                                                                    
     violence, and when I'm  talking about domestic violence                                                                    
     I want to  make sure that the members  understand - and                                                                    
     we have one  amendment today that should  be before you                                                                    
     that even  clarifies this more severely,  is that we're                                                                    
     talking  about a  case where  they have  caused serious                                                                    
     bodily injury - this is  not an allegation, this is not                                                                    
     a pushing  or shoving, this is  not a you yelled  at me                                                                    
     and that  made me  feel bad. This  is a  serious bodily                                                                    
     injury and it is a history.  You have to have a history                                                                    
     of  perpetuating  it and  once  you  see the  amendment                                                                    
     today  it will  make  it  clear once  again  that in  a                                                                    
     second part  of the bill, page  3, line 31, we  want to                                                                    
     repeat the  words 'a history  of perpetuating'  so that                                                                    
     throughout, what a judge is  looking for, Mr. Chairman,                                                                    
     is  serious bodily  injury, a  history of  perpetuating                                                                    
     domestic  violence.  And  in   those  cases,  prior  to                                                                    
     friendly parent legislation  throughout the nation, and                                                                    
     this  is  an  unbelievable  thing  but  stay  with  me,                                                                    
     sometimes the person who has  been a victim of domestic                                                                    
     violence is not awarded partial custody.                                                                                   
                                                                                                                                
     How this  happens is that  under the  existing statutes                                                                    
     in our  state and in  others, if the members  will look                                                                    
     to  ... page  2, line  22, everything  in all  caps and                                                                    
     parentheses will show  you the way the  statute used to                                                                    
     read.  It  used  to  say  as one  of  the  factors  for                                                                    
     consideration  about shared  custody, we  want to  know                                                                    
     which parent  is more likely to  encourage frequent and                                                                    
     continuing contact  with the  other parent.  That's one                                                                    
     thing. Then if  members would look to page  3, lines 17                                                                    
     through  20,  the  law  used to  say  'the  desire  and                                                                    
     ability of each parent to  allow an open and loving and                                                                    
     frequent relationship  between the child and  the other                                                                    
     parent.' Mr. Chairman,  if you have been  the victim of                                                                    
     domestic violence,  if you have  been the  recipient of                                                                    
     serious  bodily  injury   on  a  repetitive,  perpetual                                                                    
     basis, it  is unlikely  that you would  want to  have a                                                                    
     close  and loving  contact with  that  person that  has                                                                    
     been your batterer. That is  the way that it plays out,                                                                    
     and so  the child ends  up sort  of in between  the two                                                                    
     and  we don't  want  that to  happen.  But in  awarding                                                                    
     custody, what  has happened,  and there  are statistics                                                                    
     nationwide that  in roughly 70 percent  of those cases,                                                                    
     it is the  batterer that gets the custody  of the child                                                                    
     because  they're   the  ones  that  say   hey,  I  will                                                                    
     encourage this  close and loving contact,  I don't have                                                                    
     any  problem having  frequent  contact  with the  other                                                                    
     parent  - no  big deal  to me,  everything's fine.  The                                                                    
     person   who  has   been  battered   is  saying   I  am                                                                    
     uncomfortable  making  that  commitment to  have  close                                                                    
     loving contact  with the other  parent and they  end up                                                                    
     losing the ability to have custody.                                                                                        
                                                                                                                                
     So what  we're trying to  do in  this bill is  to level                                                                    
     the  playing field  and to  simply say  that, first  of                                                                    
     all, that  will be one  factor that the judge  is still                                                                    
     considering so it  is still important - if  you look on                                                                    
     page  2 -  that  you're  looking at  the  needs of  the                                                                    
     child,  the  stability  of the  home  environment,  the                                                                    
     education, the  advantage of keeping  the child  in the                                                                    
     community and  all these other  things, but  we're also                                                                    
     saying  that  if there  has  been  this serious  bodily                                                                    
     injury  and  this   history  of  perpetuating  domestic                                                                    
     violence, that  there will be  a presumption  that goes                                                                    
     in favor of the person that has been abused.                                                                               
                                                                                                                                
     Now I  might add, Mr.  Chairman, I worked  very closely                                                                    
     with Max Gruenberg  on this, and Les Gara,  who are the                                                                    
     minority members  in my committee and  Max practices in                                                                    
     this area. The only reason I  bring it up is that there                                                                    
     are always  places where you  can make a  bill stronger                                                                    
     and sort of  weaker. I want to  call members' attention                                                                    
     to the presumption  itself on page 4 - we  say that the                                                                    
     presumption itself  can be overcome by  a preponderance                                                                    
     of  the evidence.  A preponderance  of the  evidence is                                                                    
     the  lowest  possible   standard....  There  are  other                                                                    
     states that  have clear and convincing  evidence, which                                                                    
     is the  higher standard.  We have the  preponderance of                                                                    
     the evidence  standard, which is  51 percent.  And what                                                                    
     we're  saying is  hey, if  there's evidence  of serious                                                                    
     bodily injury  and a history of  perpetuating it, we're                                                                    
     not going  to let this  be used against the  person who                                                                    
     was  battered  and  the presumption  can  be  overcome,                                                                    
     though, again  by a preponderance  of the  evidence and                                                                    
     all  you  have  to   do  is  successfully  complete  an                                                                    
     intervention  program  for  batterers. That's  all  you                                                                    
     have  to do.  We're not  saying that  you will  not get                                                                    
     custody   of   your   child,  as   some   people   have                                                                    
     misunderstood  this  bill.  We   are  not  saying  that                                                                    
     because  you have  been involved  in domestic  violence                                                                    
     you'll never  be a  father or a  mother and  never have                                                                    
     the right  to see your child.  So I just want  to point                                                                    
     those things out.                                                                                                          
                                                                                                                                
     Once the bill was explained  to people on the floor, it                                                                    
     had  wide bipartisan  support on  the floor  and passed                                                                    
     the  House   amended.  I'd  be  happy   to  answer  any                                                                    
     questions that people have and  sorry if I made it even                                                                    
     more confusing.                                                                                                            
                                                                                                                                
SENATOR OGAN said he likes the fact that the bill allows for an                                                                 
intervention program for batterers because they are generally                                                                   
left untreated. He noted that the  language on page 4, lines 9-10                                                               
says  the parent  does not  engage in  substance abuse  but often                                                               
"birds  of a  feather  flock together"  and  questioned what  the                                                               
court would do if both parents engage in substance abuse.                                                                       
                                                                                                                                
REPRESENTATIVE  McGUIRE remarked  that  not all  23 states'  laws                                                               
have that  intervention language  and she  believes that  is very                                                               
important. She  said she does  not want this  bill to be  used to                                                               
permanently  prevent a  parent from  having  a relationship  with                                                               
his/her child. Second,  she pointed out that a  provision on page                                                               
4, line 15,  addresses the sad situation where  both parents have                                                               
a history  of perpetuating domestic  violence. The  first option,                                                               
in that case, is to award  sole legal and physical custody to the                                                               
parent  who is  less likely  to continue  to perpetrate  domestic                                                               
violence  and  require  that  parent   to  complete  a  treatment                                                               
program. The  second option  is to award  sole legal  or physical                                                               
custody,  or both,  to  a third  person. She  said  what is  most                                                               
important about this  bill is that it gives the  court many tools                                                               
and  discretion. She  added that  the first  option might  not be                                                               
palatable to  some people,  but that  is for  judicial discretion                                                               
and there must  be a nod toward  keeping a child with  his or her                                                               
natural family, when safe.                                                                                                      
                                                                                                                                
SENATOR OGAN maintained  that a parent with a  mental illness can                                                               
be a good parent.                                                                                                               
                                                                                                                                
REPRESENTATIVE  McGUIRE  explained that  to  get  to the  section                                                               
Senator Ogan  is referring to,  the court must  determine serious                                                               
bodily injury and a history of perpetrating violence.                                                                           
                                                                                                                                
CHAIR SEEKINS added that is assuming  that a person is still in a                                                               
custody battle and the court must make the decision.                                                                            
                                                                                                                                
REPRESENTATIVE McGUIRE  agreed and said the  mental illness would                                                               
only  come  into  play  if it  affects  that  person's  parenting                                                               
ability.                                                                                                                        
                                                                                                                                
CHAIR  SEEKINS  moved  to  adopt  Amendment  1,  which  reads  as                                                               
follows:                                                                                                                        
                                                                                                                                
                      A M E N D M E N T  1                                                                                  
                                                                                                                                
     (Page 3, Line 31 - Page 4, Line 1)                                                                                         
                                                                                                                                
     DELETE "committed an act of"                                                                                               
     INSERT "a history of perpetrating"                                                                                         
                                                                                                                                
     Rationale: In (h) below (Page  4, lines 4-7) "A history                                                                    
     of  perpetrating domestic  violence" is  given specific                                                                    
     meaning.  This   amendment  would  make   the  language                                                                    
     consistent in the two sections.                                                                                            
                                                                                                                                
SENATOR FRENCH objected for the purpose of discussion.                                                                          
                                                                                                                                
CHAIR SEEKINS felt that Amendment  1 makes subsection (g) conform                                                               
with the remainder of the section.                                                                                              
                                                                                                                                
REPRESENTATIVE  McGUIRE said  that is  exactly correct.  She said                                                               
the  intent is  to  make sure  that when  this  process is  being                                                               
abused, there is  a documented history of it. It  is not to apply                                                               
to a single allegation.                                                                                                         
                                                                                                                                
CHAIR  SEEKINS  said  it  almost  seems  predictable  in  certain                                                               
contested  divorce  cases  that  both  parties  rush  to  file  a                                                               
[domestic  violence and/or  sexual  abuse of  a minor]  complaint                                                               
when there is  no basis in fact for the  allegation. However, one                                                               
complaint  based on  a documented  history  of domestic  violence                                                               
could lead to this conclusion.                                                                                                  
                                                                                                                                
REPRESENTATIVE McGUIRE  agreed and clarified that  she meant that                                                               
the two be read together. She explained:                                                                                        
                                                                                                                                
     So, we've  always meant for it  to be more than  an act                                                                    
     but when  we looked  back at it  we realized  it wasn't                                                                    
     consistent in both parts so  it's just to reaffirm that                                                                    
     basic public  policy that we  had before and  it's just                                                                    
     what you said.                                                                                                             
                                                                                                                                
CHAIR  SEEKINS  said  the  committee  has  heard  testimony  that                                                               
complaints of domestic  violence can be used as a  weapon and not                                                               
for the best interests of the child.                                                                                            
                                                                                                                                
REPRESENTATIVE McGUIRE clarified:                                                                                               
                                                                                                                                
     So Mr. Chairman,  what we're doing now  is we're saying                                                                    
     that - and  these are difficult subjects  to talk about                                                                    
     because there  will be  some people  that would  say to                                                                    
     you yea, the incidents  of false complaints of domestic                                                                    
     violence  are  rare and  so  on,  but  I think  we  all                                                                    
     understand what  we're talking about, which  is that it                                                                    
     can be  used that way. What  this bill is doing  now is                                                                    
     it is still asking that  the best interest of the child                                                                    
     be  considered.   It's  also  asking  that   the  court                                                                    
     consider  a variety  of other  factors but  it's simply                                                                    
     saying  now  that the  fact  that  someone has  been  a                                                                    
     recipient  of serious  bodily  injury,  that there's  a                                                                    
     history of  domestic violence,  it is  a thing  that we                                                                    
     want the courts to consider and....                                                                                        
                                                                                                                                
CHAIR  SEEKINS interjected,  "All of  which  is meant  to try  to                                                               
serve the best interests of the child."                                                                                         
                                                                                                                                
REPRESENTATIVE  McGUIRE said  that is  the point.  She noted  the                                                               
victim of serious  bodily injury would not want that  abuse to be                                                               
used against him or  her in a custody battle but  the root of the                                                               
issue  is  what is  best  for  the  child.  She pointed  out  the                                                               
evidence  is  overwhelming that  in  a  household where  domestic                                                               
violence occurred,  the child  is likely to  have been  abused as                                                               
well. About 10  years ago, the legislature  acknowledged the fact                                                               
that witnessing domestic  violence has psychological implications                                                               
for children. She  noted the judge would have to  consider a list                                                               
of factors  and if there  is a  history of domestic  violence and                                                               
serious  bodily injury,  there  is the  presumption  that can  be                                                               
overcome by a preponderance of the evidence.                                                                                    
                                                                                                                                
CHAIR SEEKINS noted  that a loving parent may  not necessarily be                                                               
a good parent  and asked how to balance other  negative habits or                                                               
conditions that may be present.                                                                                                 
                                                                                                                                
REPRESENTATIVE McGUIRE  said the  original language -  the desire                                                               
of  each  parent  to provide  a  "loving,  frequent  relationship                                                               
between the child"  was an odd standard. She tried  to put a more                                                               
legally  defensible and  neutral  standard into  the standard  so                                                               
used "the  willingness and ability  of each parent  to facilitate                                                               
and  encourage  a  close  and  continuing  relationship...."  She                                                               
pointed to  the language  on line  20 and said  that gets  to the                                                               
root  of Chair  Seekins' concern,  that being  that a  history of                                                               
domestic  violence will  endanger  the health  or  safety of  the                                                               
child. However, she wants to keep  that as one of the factors for                                                               
the  court to  determine because  it is  for the  benefit of  the                                                               
child.                                                                                                                          
                                                                                                                                
SENATOR FRENCH  thought the bill  strikes a good  balance between                                                               
the  needs of  both parties  regarding child  custody issues.  He                                                               
said in  his experience, he  has not  found that most  people use                                                               
the  filing of  a  domestic  violence complaint  as  a weapon  in                                                               
custody  battles.  He finds  legal  professionals,  for the  most                                                               
part, to  be an  ethical bunch.  He then  referred to  the phrase                                                               
"serious bodily  injury" on page 4  and asked why she  chose that                                                               
phrase  rather than  "serious physical  injury" and  whether they                                                               
are the same in her mind.                                                                                                       
                                                                                                                                
CHAIR SEEKINS asked that Amendment 1 be addressed first.                                                                        
                                                                                                                                
SENATOR  FRENCH  withdrew  his   objection  to  the  adoption  of                                                               
Amendment 1, therefore it was adopted.                                                                                          
                                                                                                                                
REPRESENTATIVE  McGUIRE said  Representative Gruenberg  suggested                                                               
that  phrase and  that  she  would be  amenable  to changing  the                                                               
phrase to "serious physical injury". She  meant the two to be the                                                               
same. She then suggested including  the definition of that phrase                                                               
to improve the bill.                                                                                                            
                                                                                                                                
SENATOR FRENCH  noted that because  the phrase  "serious physical                                                               
injury" has  been used in  the criminal statutes for  decades, he                                                               
would move  to change the  word "bodily" on line  6 of page  4 to                                                               
"physical" [Amendment 2].                                                                                                       
                                                                                                                                
CHAIR SEEKINS  announced that without objection,  Amendment 2 was                                                               
adopted.                                                                                                                        
                                                                                                                                
MS. PAIGE  HODSIN, representing herself,  told members  she could                                                               
provide them with the results  of a 1988 American Bar Association                                                               
study of  12 states in  which 9,000 custody cases  were reviewed.                                                               
Less  than  2 percent  of  those  cases involved  allegations  of                                                               
sexual abuse  so the false  allegation concern is  low incidence.                                                               
She then  explained that she is  a divorced single mother  of two                                                               
children  and is  a court-appointed  special advocate  for abused                                                               
and  neglected children,  PTA president  and a  domestic violence                                                               
survivor. She was  in a verbally and  physically abusive marriage                                                               
for  11  years; most  of  the  abuse  occurred  in front  of  her                                                               
children, which is what the  bill addresses. As her daughter grew                                                               
older, she  began to see  the impact  of witnessing abuse  on her                                                               
more  clearly. As  her  daughter grew  older,  the father  became                                                               
abusive of her as well and  she felt it was her responsibility to                                                               
protect her  children's well  being and  serve as  an appropriate                                                               
role model. Her ex-husband had  threatened to use whatever action                                                               
necessary to prove her to be  an unfit mother and take custody of                                                               
the children, who  she would never see again.  During the custody                                                               
battle, she found that her role  had been turned upside down. Her                                                               
common sense  told her that  she was responsible for  getting out                                                               
of the  marriage to protect  the children, yet she  was pressured                                                               
to not  raise those concerns  during the custody battle.  Some of                                                               
the  statutes  resulted in  equal  blame  for the  violence.  Her                                                               
children's  fears about  their father's  abuse were  pathologized                                                               
and  the court  strongly implied  that if  she did  not accept  a                                                               
shared physical  custody arrangement,  the court would  give full                                                               
custody to the father.                                                                                                          
                                                                                                                                
MS.  HODSIN said  as time  went  on, she  found the  toll on  her                                                               
daughter  of  unsupervised  visitation  with  the  father  became                                                               
enormous.  She would  scream, kick  and cry  when taken  from her                                                               
home and had trouble at school.  Her daughter reached out to many                                                               
trusted  adults yet  the  court  failed to  respond.  Her son,  a                                                               
toddler, would be returned dehydrated  and unclean, and once with                                                               
a black  eye. She went through  two full custody trials  and five                                                               
years of litigation. She now  has full legal and physical custody                                                               
of  her  children  but  her  ex-husband  still  has  unsupervised                                                               
visitation  rights.   Ultimately,  she  found  her   case  to  be                                                               
representative  of  systemic  failure  in  the  court  system  to                                                               
protect domestic  violence victims and their  children. She found                                                               
women and children all over  the country with similar experiences                                                               
and  she  found  an  alarming number  of  abusive  parents  being                                                               
awarded full custody  of their children.  She said  HB 385 is the                                                               
result of  almost three  years of  researching and  networking to                                                               
find  the  best  statutes  in  the country  and  it  is  strongly                                                               
supported by  many organizations involved with  the protection of                                                               
children.  It brings  Alaska's child  custody statutes  into line                                                               
with what 11 states are  doing. Congress and the National Council                                                               
of Juvenile  Court Justices recommend  it. It also  brings Alaska                                                               
statute  into line  with  voluminous research  on  the impact  of                                                               
domestic   violence  on   children.  She   thanked  members   for                                                               
considering this legislation.                                                                                                   
                                                                                                                                
MS.  CHRISTINE  PATE, Alaska  Network  on  Domestic Violence  and                                                               
Sexual Assault, stated support for CSHB 385(JUD)am.                                                                             
                                                                                                                                
CHAIR SEEKINS announced that public testimony was closed.                                                                       
                                                                                                                                
SENATOR  OGAN  moved  SCS  CSHB   385(JUD)  from  committee  with                                                               
individual recommendations and its attached fiscal notes.                                                                       
                                                                                                                                
CHAIR  SEEKINS  announced  that  without  objection,  the  motion                                                               
carried.  He then  announced his  intention to  begin Wednesday's                                                               
meeting promptly at 8:00 a.m.  and adjourned the meeting at 10:01                                                               
a.m.                                                                                                                            

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