Legislature(2009 - 2010)CAPITOL 120
03/22/2010 04:00 PM House RULES
| Audio | Topic |
|---|---|
| Start | |
| HB334 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| HB 334 | |||
| HB 3 | |||
ALASKA STATE LEGISLATURE
HOUSE RULES STANDING COMMITTEE
March 22, 2010
4:06 p.m.
MEMBERS PRESENT
Representative Nancy Dahlstrom, Chair
Representative Bob Herron, Vice Chair
Representative Charisse Millett
Representative Mark Neuman
Representative Kurt Olson
Representative Berta Gardner
Representative Beth Kerttula
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
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."
- MOVED CSHB 334(RLS) OUT OF COMMITTEE
HOUSE BILL NO. 3
"AN ACT RELATING TO ISSUANCE OF IDENTIFICATION CARDS AND TO
ISSUANCE OF DRIVER'S LICENSES; AND PROVIDING FOR AN EFFECTIVE
DATE."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 334
SHORT TITLE: MILITARY DEPLOYMENT AND CHILD CUSTODY
SPONSOR(s): REPRESENTATIVE(s) THOMAS
02/10/10 (H) READ THE FIRST TIME - REFERRALS
02/10/10 (H) MLV, JUD
02/23/10 (H) MLV AT 1:00 PM BARNES 124
02/23/10 (H) Moved CSHB 334(MLV) Out of Committee
02/23/10 (H) MINUTE(MLV)
02/24/10 (H) MLV RPT CS(MLV) NT 6DP
02/24/10 (H) DP: T.WILSON, LYNN, KAWASAKI, BUCH,
RAMRAS, HARRIS
03/08/10 (H) JUD AT 1:30 PM CAPITOL 120
03/08/10 (H) Moved CSHB 334(JUD) Out of Committee
03/08/10 (H) MINUTE(JUD)
03/11/10 (H) JUD RPT CS(JUD) NT 4DP 2AM
03/11/10 (H) DP: LYNN, HERRON, DAHLSTROM, RAMRAS
03/11/10 (H) AM: GRUENBERG, HOLMES
03/22/10 (H) RLS AT 4:00 PM CAPITOL 120
WITNESS REGISTER
KACI SCHROEDER-HOTCH, Staff
Representative Bill Thomas
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke on behalf of the prime sponsor of HB
334, Representative Thomas.
JEAN MISCHEL, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 334, answered
questions.
ACTION NARRATIVE
4:06:43 PM
CHAIR NANCY DAHLSTROM called the House Rules Standing Committee
meeting to order at 4:06 p.m. Representatives Dahlstrom,
Herron, Millett, Neuman, Olson, Gardner, and Kerttula were
present at the call to order.
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
parent.
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.
Schroeder-Hotch.
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
"child."
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
works.
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
dependents.
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.
4:46:24 PM
ADJOURNMENT
There being no further business before the committee, the House
Rules Standing Committee meeting was adjourned at 4:46 p.m.
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