Legislature(2009 - 2010)BELTZ 105 (TSBldg)
02/08/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB60 | |
| SB210 | |
| SB246 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 246 | TELECONFERENCED | |
| *+ | SB 210 | TELECONFERENCED | |
| + | SJR 21 | TELECONFERENCED | |
| += | SB 60 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 210-MILITARY DEPLOYMENT AND CHILD CUSTODY
1:40:51 PM
CHAIR FRENCH announced the consideration of SB 210.
SENATOR HUGGINS, Alaska State Legislature, sponsor of SB 210,
described SB 210 as part of a national effort to modernize how
soldiers and families are addressed in a deployment. He pointed
out that the military has changed substantially since the
initial legislation was passed. The father being deployed is no
longer the classic case. Now it's the father or the mother who
is deployed and sometimes it's both the father and the mother
who are deployed. This has caused great stress in military
families; suicide rates are historically high.
1:45:19 PM
JOSH TEMPEL, Staff to Senator Huggins, Alaska State Legislature,
explained that SB 210 attempts to give the court clear directive
on how to deal with child custody matters when a military parent
is deployed. Last year Congress said that this matter should be
addressed on the state level. The sponsor has received input
from the Alaska Bar Association Family Law Section, Alaska
National Guard attorneys, JAG attorneys, and family law
attorneys within the state who deal with military service
members.
SENATOR HUGGINS and Mr. Tempel both spoke to the following
sponsor statement in their testimony:
For nearly a decade, the War on Terror has required
Alaska to frequently deploy our active military,
reserve, and National Guard troops. This high
deployment tempo is putting even more pressure on our
already strained military families. Children who are
already in unusual circumstances due to their parents'
military careers are being put in the situation of
having to deal with a deployed parent. It is no wonder
that the divorce rate for members in the military has
been steadily rising for the past decade.
However, while the travesty of divorce is hard enough
on all members of a family, the court system is also
finding it difficult to balance the issues of
deployment with child custody issues. A deploying
family member now must fight a battle on two fronts,
the one in the Middle East, and the one at home. SB
210 ensures that the court system has clear directive
as to how it should deal with a deploying military
member if they should find themselves in the midst of
a child custody battle. It affords them the right to
an expedited hearing so that matters can be taken care
of before deployment, if necessary, and it also allows
the member to delegate their visitation rights to
another family member in order for the child to
maintain all familial connections. Most importantly,
SB 210 requires that a court not use deployment as the
sole reason for a change in a child custody order. Our
men and women are sacrificing enough for our country,
their military service should not be a reason in
itself for them to lose custody of their children.
In 2009, because of the potential for conflict with
current states child custody laws, congress deemed
military child custody to be the responsibility of
individual states.
SB 210 includes the following items and restrictions:
· A definition of a military absence.
· Assurance that military duties cannot be the sole
reason for a permanent change of custody.
· Allowance of expedited hearings with restrictions.
· The right to delegate visitation to another family
member.
· Allowance of electronic testimony.
· Limitations on temporary custody orders.
In recognizing that the federal government should not
legislate a Military Child Custody statute, that
Alaska has many service-members, that the United
States military currently has a high rate of
deployment, and that military divorce rates continue
to rise, now is a good time for the Alaska Legislature
to address military child custody.
1:50:06 PM
MR. TEMPEL displayed a CBS news video to illustrate custody
issues facing military members today.
1:53:18 PM
MARK SULLIVAN, Family Law Attorney practicing in Raleigh North
Carolina, said he is a retired Army Reserve JAG Colonel. His
accomplishments include appointment to the Uniform State Law
Commission committee on military custody and visitation laws,
author of the North Carolina legislation on child custody, and
consultant to states updating child custody statutes. He
described the proposed statutory change outlined in SB 210 as
superior to the one he wrote. He outlined the provisions in SB
210:
· A parent's deployment may not be considered in determining
the best interest of the child on a hearing for a change of
custody.
· Grants delegated visitation rights to a family member.
· Allows for expedited hearings.
· Provides electronic participation.
· Requires the return of the child within 10 days after the
deployed parent is able to resume custody.
· Absence due to deployment may not be used by a parent as a
waiver of right to be with a child unless there is an
express waiver to that effect.
· Requires the non-deployed parent to be available to the
service member during leave from deployment.
· Requires the non-deployed parent to facilitate contact
between the service member and the child.
· It mandates that the deployed parent give timely
information to the non-deployed parent about the leave
schedule.
· It requires immediate notification by the non-deployed
parent of any change in address or contact information.
1:55:35 PM
MR. SULLIVAN said that when the Uniform Law Commission meets in
April he will suggest using the Alaska law as model legislation.
SB 210 does a very good job in meeting the needs of mothers and
fathers in uniform, he concluded.
SENATOR COGHILL asked if the courts require a power of attorney
when the custodial parent has been deployed.
MR. SULLIVAN explained that a power of attorney for education,
healthcare, and all other issues is required as part of the
Family Care Plan. It's part of military regulations.
1:58:09 PM
MARK SANSOUCI, Regional Liaison, Department of Defense (DoD)
Northwest State Liaison Office said their mission is to be a
resource for state policy-makers as they address quality of life
issues for military families. He said that many deployed service
members have found that states do not consider the unique
aspects of military service when making custody decisions. These
absences due to military service can undermine and disrupt
existing arrangements creating stress on parents and children.
The deployed member may be distracted and less able to focus on
his or her mission. The DoD state liaison office is focusing on
this as a key issue affecting military families in the states.
MR. SANSOUCI said that the policy and language in SB 210
addresses the areas of concern relating to military members and
child custody. It prevents the courts from considering absences
during deployment as the sole basis for making custody and
visitation decisions and allows for expedited hearings or use of
electronic communication so that deployment does not prevent a
service member from participating in court hearings. SB 210
supports the reinstatement of the custody order after the
service member returns from the deployment and allows for the
delegation of visitation rights and visitation during periods of
leave. This ensures a continued bond between the military member
and his or her children.
Currently 32 states have passed laws that address some aspect of
the difficulties facing parents who must temporarily give up
custody of their children or who must forego visitation when
called to take up the burdens of the nation.
2:01:53 PM
SENATOR EGAN asked how he would classify the proposed
legislation using the "strong, weak, and nil" metric referenced
in the CBS report.
MR. SANSOUCI replied he agrees with Mark Sullivan. SB 210 has
all five provisions that DoD is looking for; it's excellent.
SENATOR COGHILL asked what the DoD will do to ensure that
military families aren't burdened by having to rent a motel off
post or off base to accommodate hearing and custody
requirements.
MR. SANSOUCI agreed that would be of paramount concern. He noted
that children continue to have a military ID and they may have
benefits, but he hesitates to speculate on each circumstance.
2:06:33 PM
SENATOR COGHILL said his concern is that the bill imposes
requirements on the court to do certain things and he wants to
make sure that military members and their children aren't left
standing outside the gate in cold weather in order to visit one
another.
MR. TEMPEL directed attention to page 2, lines 13-15, which
states that the child must be made reasonably available for
visitation to the deployed parent if it's in the child's best
interest. There is no mandate and it must be in the child's best
interest, he emphasized.
SENATOR COGHILL clarified that he was looking for DoD to say it
wouldn't be a problem to accommodate military parents who are
visiting their child while they are on leave and on the post.
2:07:46 PM
CHRISTINE PATE, Supervising Attorney, Alaska Network on Domestic
Violence and Sexual Assault ("Network"), said she has practiced
family law in Alaska for about 15 years; for the last ten years
she has run a statewide legal program for victims of domestic
violence and sexual assault. The Network has worked with the
sponsor on the bill and continues to have a few safety concerns
with the language as it might apply in cases of domestic
violence.
MS. PATE said the first concern relates to the potential for
abuse in the expedited hearings at the initial custody phase and
the modification phase outlined on page 2, lines 6-10 and page
4, line 5. Court records indicate that up to 80 percent of
people go through family law proceedings pro se and her
experience is that abusers, at times, use this as an abusive
tactic in litigation.
2:10:45 PM
SENATOR WIELECHOWSKI joined the committee.
MS. PATE said she appreciates that the sponsor worked to include
language to ensure that laws protecting victims of domestic
violence and sexual assault in custody cases is clearly linked
to this statute. However, the language isn't clear that the
rebuttal presumption in custody law would apply to the deployed
parent and the one being delegated custodial rights. It should
be clear that it would apply to both people as potential
custodians of children.
The final concern relates to notice about changes in address and
location. Current information is important when there's a
deployed parent that has little contact, but for victims of
domestic violence it would be helpful to clarify that this is
assuming that there are no safety concerns for a parent or a
child.
2:12:42 PM
ALLEN M. BAILEY, Family Law Attorney, Anchorage, said he has
been in practice for 36 years, 26 years as a family lawyer
primarily handling family law cases for service members from
what is now called Joint Base Elmendorf-Richardson. He related
that he is the current chair of the Child Custody Committee of
the ABA Family Law Section, a former member of the ABA
Commission on Domestic Violence, and a member of the Anchorage
DV Caucus. The drafters of SB 210 have done an outstanding job
of incorporating language to ensure that the courts consider
domestic violence issues along with the best interest of
children, he said. Those are the two most important things that
the judge will consider in these requests.
MR. BAILEY opined that SB 210 will be easier to enforce than the
North Carolina law because it has more specific terms and
includes broader means for electronic communication.
Incorporating Internet-based video testimony helps to reduce the
advantage of a person who is present in the courtroom over a
person who is not able to be present.
2:18:36 PM
SENATOR WIELECHOWSKI asked if a custodial parent who is deployed
to Iran or Iraq could possibly take the child along and if that
would change under this bill.
MR. BAILEY replied there are many ways to handle these matters,
but this bill will prohibit a judge from considering deployment
in making a determination. There will be a temporary order for
the noncustodial parent to have custody of the child during the
deployment, but when the deployment ends the order will revert
unless someone takes an action to bring the child's safety to
issue.
SENATOR WIELECHOWSKI asked if the touchstone in family law is
the best interest of the child.
MR. BAILEY replied he tells his clients that it's the guiding
star, but the presumption in AS 25.24.150(g) and some
resolutions adopted by interdisciplinary groups have brought the
safety of the child to an even stronger position.
2:22:12 PM
SENATOR WIELECHOWSKI asked if the courts ever order children to
accompany a deployed parent.
MR. BAILEY said he's never heard a court order that unless the
deployment was to a technically overseas base like Alaska.
SENATOR WIELECHOWSKI highlighted his concern that the language
in Section 1, subsection (a) appears to say that if a person
requests custody to take their child to Iraq or Afghanistan, the
court couldn't deny the request simply because it's a war zone.
He asked if he reads it the same way.
MR. BAILEY said his understanding is that the service member who
has custody has to execute a family care plan including a power
of attorney designating someone to care for the child in the
event of deployment. "I don't believe parents are permitted to
take their children along on deployments or anywhere that
children might be endangered," he said.
SENATOR WIELECHOWSKI commented that the language is problematic.
2:24:30 PM
CHAIR FRENCH said he understands the point is to not penalize a
deployed parent for their deployment. It's not intended to allow
the child to go along on a deployment across the globe.
MR. TEMPEL pointed out that the language says it can't be done
if it isn't in the child's best interest and bringing a child
into a war zone definitely isn't in the child's best interest.
He hasn't heard of that happening.
SENATOR WIELECHOWSKI said he can't imagine that would be the
case, but the way it's written it isn't clear.
2:25:47 PM
JEAN MISCHEL, Drafting Attorney, Legislative Legal Services,
Legislative Affairs Agency, explained that the intention was not
to override provisions governing custody and visitation orders
in the state, but at the same time to not penalize a parent for
being deployed or for moving to active military status. She
noted that this and every other state has laws that govern
moving a child from their home jurisdiction. She pointed out
that the best interest of the child is clearly stated throughout
Sections 1 and 2. She would be surprised if a court misconstrued
that provision to require or allow a child to be deployed with a
parent. Furthermore, deployment orders specify whether it is
with or without a family and state law cannot override that
order.
CHAIR FRENCH said it's a point for the committee to ponder to
ensure that it doesn't raise a question in a judge's mind that
doesn't need to be raised.
MS. MISCHEL suggested that it could go back to the sole factor
in making a decision.
CHAIR FRENCH reviewed the provision dealing with expedited
hearings for parents being deployed or subject to deployment and
asked how a judge would analyze the phrase "subject to
deployment."
MR. TEMPEL explained that it means that you have received notice
that you are going to deploy.
CHAIR FRENCH said it needs clarification so that a nonmilitary
judge would understand that.
MS. MISCHEL pointed out that the issue is dealt with in the
definitions.
CHAIR FRENCH said his staff, Cindy Smith, just pointed that out
as well.
2:29:50 PM
SENATOR COGHILL asked where in the bill it talks about holding a
subsequent hearing after returning from deployment.
MS. MISCHEL directed attention to page 3, lines 26-29. It
addresses the resumption or reinstatement of an existing order
if it had been temporarily modified under Section 2 of the bill.
SENATOR COGHILL asked if both the deployed parent and the
nondeployed parent are subject to reevaluation.
MS. MISCHEL directed attention to page 3, lines 20-29. The
answer is yes, but the nondeployed parent has the burden of
proof if there's an issue opposing resumption of the original
order, she said.
2:32:23 PM
CHAIR FRENCH asked Mr. Wooliver if the court would be ready to
implement the electronic and telephonic aspects of the bill if
the law were to pass.
DOUG WOOLIVER, Administrative Attorney, Alaska Court System,
said they asked the sponsor to clarify the meaning of
"electronic." The court can do Skype-type communication, but it
doesn't have the ability to do full-blown video
teleconferencing. The proposed amendment to [Rule 99(a) of the
Alaska Rules of Civil Procedure] makes it clear that it is
Internet-based. There may be bandwidth issues in some locations,
but there certainly shouldn't be problems in Anchorage and
Fairbanks. He presumes that's where most of these hearings will
occur because in this state most people are deployed from those
locations.
CHAIR FRENCH recalled that child custody is dealt with in
superior court rather than district court so the hearings would
take place in larger metropolitan areas, not small villages.
MR. WOOLIVER agreed.
SENATOR WIELECHOWSKI asked if Internet conferencing would add
cost.
2:34:31 PM
MR. WOOLIVER replied it may cost $200 per courtroom.
SENATOR WIELECHOWSKI suggested doing it in every child custody
case if it's that inexpensive.
MR. WOOLIVER replied the court is already moving in that
direction.
CHAIR FRENCH announced he would hold SB 210 to ponder questions
like that.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SJR21 sponsor statement.pdf |
SFIN 3/15/2010 9:00:00 AM SJUD 2/8/2010 1:30:00 PM |
SJR 21 |
| SJR 21 Population Trend 2010 districts.pdf |
SFIN 3/15/2010 9:00:00 AM SJUD 2/8/2010 1:30:00 PM |
SJR 21 |
| Alaska Supreme Court. redistricting.pdf |
SFIN 3/15/2010 9:00:00 AM SJUD 2/8/2010 1:30:00 PM |
SJR 21 |
| SB 210 Sponsor Statement - Military Child Custody.doc |
SJUD 2/8/2010 1:30:00 PM |
SB 210 |
| Resolution 106.pdf |
SJUD 2/8/2010 1:30:00 PM |
SB 210 |
| NAUS Military Divorce Rate Continues to Climb.docx |
SJUD 2/8/2010 1:30:00 PM |
SB 210 |
| Custody Map (10-23).ppt |
SJUD 2/8/2010 1:30:00 PM |
SB 210 |