02/08/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB60 | |
| SB210 | |
| SB246 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 246 | TELECONFERENCED | |
| *+ | SB 210 | TELECONFERENCED | |
| + | SJR 21 | TELECONFERENCED | |
| += | SB 60 | TELECONFERENCED | |
| + | TELECONFERENCED |
5ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 8, 2010
1:37 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Dennis Egan
Senator Lesil McGuire
Senator John Coghill
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 60
"An Act relating to the Uniform Probate Code, including wills,
trusts, nonprobate transfers, augmented estates, personal
representatives, and trustees; and amending Rules 3 and 8,
Alaska Rules of Civil Procedure, Rule 1, Alaska Rules of Probate
Procedure, and Rule 37.5, Alaska Rules of Administration."
MOVED CSSB 60(L&C) OUT OF COMMITTEE
SENATE BILL NO. 210
"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."
HEARD AND HELD
SENATE BILL NO. 246
"An Act increasing the number of superior court judges
designated for the third judicial district; and providing for an
effective date."
HEARD AND HELD
SENATE JOINT RESOULTION NO. 21
Proposing amendments to the Constitution of the State of Alaska
relating to and increasing the number of members of the house of
representatives to forty-eight and the number of members of the
senate to twenty-four.
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 60
SHORT TITLE: UNIFORM PROBATE CODE; TRUSTS, WILLS
SPONSOR(s): MCGUIRE
01/21/09 (S) PREFILE RELEASED 1/16/09
01/21/09 (S) READ THE FIRST TIME - REFERRALS
01/21/09 (S) L&C, JUD
03/24/09 (S) L&C AT 1:30 PM BELTZ 211
03/24/09 (S) Scheduled But Not Heard
03/31/09 (S) L&C AT 1:00 PM BUTROVICH 205
03/31/09 (S) Heard & Held
03/31/09 (S) MINUTE(L&C)
04/16/09 (S) L&C AT 3:45 PM BELTZ 211
04/16/09 (S) Moved CSSB 60(L&C) Out of Committee
04/16/09 (S) MINUTE(L&C)
04/17/09 (S) L&C RPT CS 1DP 2NR 2AM SAME TITLE
04/17/09 (S) DP: THOMAS
04/17/09 (S) NR: MEYER, DAVIS
04/17/09 (S) AM: PASKVAN, BUNDE
02/01/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/01/10 (S) Heard & Held
02/01/10 (S) MINUTE(JUD)
02/08/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 210
SHORT TITLE: MILITARY DEPLOYMENT AND CHILD CUSTODY
SPONSOR(s): HUGGINS
01/19/10 (S) PREFILE RELEASED 1/8/10
01/19/10 (S) READ THE FIRST TIME - REFERRALS
01/19/10 (S) JUD, FIN
02/08/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 246
SHORT TITLE: INCREASING NUMBER OF SUPERIOR CT JUDGES
SPONSOR(s): RULES BY REQUEST
01/29/10 (S) READ THE FIRST TIME - REFERRALS
01/29/10 (S) JUD, FIN
02/08/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
SENATOR CHARLIE HUGGINS
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Sponsor of SB 210.
JOSH TEMPEL, Staff
to Senator Huggins
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Introduced SB 210.
MARK SULLIVAN, Family Law Attorney
Raleigh, NC
POSITION STATEMENT: Supported SB 210.
MARK SANSOUCI, Liaison
Northwest State Liaison Office
Department of Defense
POSITION STATEMENT: Supported SB 210.
CHRISTING PATE, Supervising Attorney
Alaska Network on Domestic Violence and Sexual Assault
POSITION STATEMENT: Supported SB 210.
ALLEN M. BAILEY, Family Law Attorney
Anchorage, AK
POSITION STATEMENT: Supported SB 210.
JEAN MISCHEL, Attorney
Legislative Legal Services
Legislative Affairs Agency
Juneau, AK
POSITION STATEMENT: Explained provisions in SB 210.
DOUG WOOLIVER, Administrative Attorney
Alaska Court System
Juneau, AK
POSITION STATEMENT: Provided information related to SB 210 and
presented SB 246
THERESA OBERMEYER, representing herself
Anchorage, AK
POSITION STATEMENT: Testified on SB 246.
ACTION NARRATIVE
1:37:26 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:37 p.m. Senators Egan, Coghill,
and French were present at the call to order. Senators
Wielechowski and Coghill joined the meeting soon thereafter.
SB 60-UNIFORM PROBATE CODE; TRUSTS, WILLS
1:38:26 PM
CHAIR FRENCH announced the consideration of SB 60. The bill was
heard previously and public testimony was taken. Finding no
questions or amendments, he asked for a motion.
1:38:54 PM
SENATOR EGAN moved to report committee substitute (CS) for
Senate Bill 60 from committee with individual recommendations
and attached fiscal note(s). There being no objection, CSSB
60(L&C) moved from committee.
At ease at 1:39 p.m.
1:39:15 PM
SENATOR MCGUIRE joined the committee.
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.
SB 246-INCREASING NUMBER OF SUPERIOR CT JUDGES
2:36:20 PM
CHAIR FRENCH announced the consideration of SB 246.
DOUG WOOLIVER, Administrative Attorney, Alaska Court System,
said that SB 246 adds one superior court judge to the Third
Judicial District. That judge will be located in Anchorage and
will handle civil cases. He explained that this change requires
a bill because the number of superior court judges is determined
in statute.
MR. WOOLIVER said the court could justify three more superior
court judges in Anchorage, but they hope to make some procedural
reforms so that one additional judge will suffice, at least for
this year. He related that a couple of case types, not
additional filings, have resulted in increased workload for
superior court judges. These are child in need of aid (CINA)
cases and cases where one or both parties are unrepresented by
counsel. Judges are spending more time on CINA cases now because
standing masters are doing less work. Previously, a CINA case
would come to a standing master and proceed through the master
until it was a contested hearing in which case it would be sent
to a superior court judge temporarily and then back to the
master. That system saved judge time but it sent families
bouncing back and forth between one judge and the master then
another judge and the master. Superior court judges have the
ultimate authority to make decisions in CINA cases, but the
judge wasn't always familiar with the case. More frequently, the
family wasn't familiar with the judge that was deciding the
case. The new practice in Anchorage takes more time for superior
court judges even though the cases don't take longer. Superior
court judges are spending more time on these cases, which is
better for the families and the outcome of the case.
MR. WOOLIVER said that CINA cases also have more status hearings
than in the past. The way the process works now is that families
are told all the things they have to do in order to get their
children back. Judges found, largely through the therapeutic
court process, that regular status hearings before a judge keep
families focused on what they need to do and the judge informed
about their progress. This increases the likelihood that the
family will be reunited. These two things are keeping superior
court judges busier.
2:39:56 PM
MR. WOOLIVER said that the other case type that causes more work
for judges is when parties are unrepresented. In divorce cases
about 80 percent of people are unrepresented in all post decree
motion work. When domestic relations cases are first filed about
37 percent have counsel on both sides, 37 percent have no
counsel on either side, and about 25 percent have counsel on one
side but not the other. The court has taken steps to make it
easier for people who can't afford a lawyer to access the court
system, but that takes more time. By making it easier for pro se
litigants, particularly with the Family Law Self-Help Center,
more people go to court unrepresented.
Adding one superior court judge will help the workload somewhat,
but the court is also looking at less expensive ways to improve
the system so it doesn't have to ask for more than one
additional judge, he said.
2:42:31 PM
SENATOR COGHILL asked if therapeutic courts are similarly time
consuming or if these cases are on a different level.
MR. WOOLIVER replied they're a little different. In the
therapeutic court process it takes a lot of time during the 18
month program, but the hope is that it won't take time in the
future. In contrast, custody cases can be before the court for
18 years. The therapeutic approach with CINA cases doesn't save
time, but hopefully better decisions are made increasing the
likelihood that parents will get their act together and they'll
get their kids back.
2:44:26 PM
THERESA OBERMEYER, representing herself, said she was motivated
to testify when she learned that SB 246 is about creating more
judgeships. "It's fine with me, but I know this - it's all
becoming so bureaucratic," she concluded.
CHAIR FRENCH held SB 246 in committee.
2:50:38 PM
There being no further business to come before the committee,
Chair French adjourned the meeting at 2:50 p.m.
| 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 |