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