HB 335 - UNIFORM INTERSTATE CHILD CUSTODY ACT Number 0179 CHAIRMAN BUNDE called the meeting back to order at 3:24 p.m. He announced the first item on the calendar was House Bill 335, "An Act replacing the Uniform Child Custody Jurisdiction Act with the Uniform Child Custody Jurisdiction and Enforcement Act; and amending Rules 4 and 62, Alaska Rules of Civil Procedure, and Rule 205, Alaska Rules of Appellate Procedure." He asked Patti Swenson to come forward to present HB 335. Number 0252 PATTI SWENSON, Legislative Assistant to Representative Con Bunde, stated that House Bill 335, The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) addresses the problem of interstate child custody. She emphasized the bill only addresses interstate child custody, not custody within the state. She commented that often it is the children who suffer during a custody dispute between adults. This legislation works in the best interest of children. This Act revises the UCCJEA by enhancing rules for custody determinations and by adding new enforcement provisions. Specifically, it will provide a quick and inexpensive process for parents to enforce child custody orders and visitation determinations across state lines, and eliminate the conflicts and problems which surround interstate custody and visitation orders by adding uniformity to the law. Soon this Act will be adopted by all 50 states. When it is, parents will not be able to use their children as pawns in their disputes. Number 0348 MS. SWENSON further stated this Act will provide uniformity of law. Without uniformity, the child custody waters will be muddied in many ways. First, the cost of an enforcement action will be greatly increased. Second, parents will continue to lack certainty of outcome in a case and third, the lack of uniformity between various state laws often turns enforcement of an interstate child custody or visitation order into a long and drawn out process, in which one parent can delay visitation or custody indefinitely. Number 0383 MS. SWENSON concluded this legislation is important for all those who will be involved in custody disputes. Children will benefit from the security it will give them and parents will not be able to manipulate court orders in an effort to gain custody of a child. She thanked committee members for their consideration of what she believes to be an important piece of legislation. CHAIRMAN BUNDE asked Deborah Behr from the Department of Law to come forward. Number 0420 DEBORAH BEHR, Assistant Attorney General, Legislation and Regulations Section, Civil Division, Department of Law, and Uniform Law Commissioner for the state of Alaska, informed committee members that she was one of nine attorneys nationwide selected to be on the committee to draft this Uniform Custody Jurisdiction and Enforcement Act, which she considers to be a drastic improvement in the law. This Act will make it considerably easier to determine what state has the ability to modify the order and what state has the ability to enforce the order. Number 0463 MS. BEHR pointed out that the goal of the committee was to get a bill whereby an individual would not have to hire an attorney, but could go to the court with a "canned form and say I have an order to see my child; I'm being denied that. Here are the facts. I'm not involved in any other domestic violence proceeding or whatever. I want to see my child and the court's obligation is to enforce that order." Visitation to a child is a very important right and it should be exercised quickly. When visitation is denied, it has a dramatic impact on a child. MS. BEHR noted the people appointed to the committee were very middle-of-the-road-type people who were aware that if the Act was drafted to one side or the other, it wouldn't be passed by the legislature and in the end, would do no good. Domestic violence groups, family law judges, and fathers' rights groups all observed the work of the committee. Number 0548 MS. BEHR said the importance of all states having the same terms is to ensure uniformity of the rules among the states. She cited a practical example: "The typical case will be a marriage in Alaska; people have been here five years; they get a divorce; the custodial parent moves out of state - maybe to Washington for four months, moves down to California for four months. What the question is now is they come in at the end of eight months and the noncustodial parent says 'I'd like to see the child for Christmas visitation or holiday visitation; I have a right to it in my order' and the custodial parent for one reason or another says 'no'. This bill will answer what court has a right to enforce the order, what court has an obligation to enforce the order, and what court has the obligation - if someone has a concern - to modify the order." Number 0590 CHAIRMAN BUNDE asked which court will have that right? It was his understanding that it would be the court of jurisdiction where the original custody was determined. MS. BEHR responded that based on her example, Alaska would make that decision if HB 335 becomes law. However, she suspects that under the current law - without this modification - California would make the decision. She further explained that a parent who retains the services of an Alaskan attorney, not licensed to practice law in California, would bear the cost of not only the services of the Alaskan attorney, but the services of a California attorney as well to enforce the parental right in a valid court order. However, if the other parent believes there is a domestic violence issue, there are ways to bring that to the attention of the court. She assured committee members that children are protected. CHAIRMAN BUNDE acknowledged that Anchorage and Valdez were on listen-only teleconference. Number 0655 REPRESENTATIVE JOE GREEN advised that he had introduced a similar piece of legislation, and the dialogue which took place in trying to move that bill, indicated there are a number of custodial parents that will move out of state either from fear of or actual domestic violence acts. Often times the feeling is they don't have a strong enough case, and their only protection is to leave the state. He said, "The complaint is because they either perceive or in some cases don't have - but they'll make that issue - the noncustodial parent doesn't have right." He wondered if both those concerns would be addressed in this legislation. MS. BEHR responded affirmatively. She said that generally, the enforcing court has an obligation to respect the order, not modify the order, and to enforce it. The court can take emergency jurisdiction when facts are presented that an emergency exists. The facts presented by Representative Green do not rise to the level of an emergency order in her opinion. She would advise that custodial parent to go back to the home state, inform the judge of the concerns, and then modify the order through the ordinary course of business rather than deny visitation. Number 0740 CHAIRMAN BUNDE said his perspective, based on correspondence received, is that often - as unjustified as it may be - the excuse for not paying child support is the lack of visitation rights. Because there would be some uniformity, he wondered if there was a possibility that unjustified reason would go away. MS. BEHR advised that the Uniform Law Commissioner Conference, of which she is a member, came out with the Uniform Child Support Act. Several years ago when she started doing family law, an individual could easily avoid a child support obligation by crossing state lines. Now, however with states banning together, it's difficult to avoid a child support obligation by crossing state lines. She is hopeful this legislation will bring about that same kind of predictability in visitation. Number 0822 REPRESENTATIVE GREEN said, "Following up on my earlier question, then if the noncustodial parent is denied access to visitation because of perception - you indicated you would advise the custodial parent to get this all cleared up in the court of jurisdiction - but if on the other hand the person fled or whatever you call it - what recourse would the noncustodial parent have?" MS. BEHR clarified the situation being discussed was that of a custodial parent not returning a child for holiday visitation in Alaska. REPRESENTATIVE GREEN confirmed that. MS. BEHR indicated the Act has provisions and one remedy is that the California judge could order the parent to bring the child into court. If the parent does not comply, the Act contains a provision to send troopers to get the child. She added this is considered to be an extraordinary remedy. It is her hope that most parents will know that the orders have to be followed and they will be held accountable. The goal is to have the order followed and to get the order modified if a problem does arise. Number 0906 CHAIRMAN BUNDE referred and page 5, line 1 and asked who is entitled to be heard in the referenced hearing. MS. BEHR pointed out this is when the initial custody determination or when a modification is being made; it's not the enforcement action. This provision gives notice of opportunity to all persons who are entitled to notice under the laws of the state. In other words, it would look to the laws under the state of Alaska which to the best of her recollection, would be any parent, any person who has a right to visitation, in some cases, grandparents, and any custodian. CHAIRMAN BUNDE referred to page 6, line 9, which establishes procedures for an Alaskan court to decline jurisdiction, and asked Ms. Behr if she could further explain that section. MS. BEHR replied, "Yeah, that's very helpful because I think at some point -- say you have a one-year-old and there's a divorce, 15 years later, if the -- for example, the contacts with the state of Alaska are very limited, the state of Alaska could come in and say, 'Look, we are no longer' -- a parent in the California example, could petition the state of Alaska court in saying, 'This is not the appropriate place; we have the better information in California.' The Alaska court is the one that would make that decision. The Alaska court could look at the information that's here listed in (b) and decide whether or not it's appropriate to decline their rights of making this decision. And there's some interesting things here, like the domestic violence groups wanted to be absolutely certain on page 6, line 19 - 21, that domestic violence was one of the first issues that the judge looked at." The length of time outside the state, the distance between the courts, relative financial circumstances and other factors go into a decision of whether Alaska should decline jurisdiction. Number 1038 CHAIRMAN BUNDE referred to page 9, line 25, Enforcement under the Hague Convention, and asked if that was to address international problems. MS. BEHR pointed out the Hague Convention controls the United States' agreements with other countries and essentially allows a state to enforce a Hague order. There are rare occasions when a child is taken across international lines by a parent not born in the United States. Number 1072 CHAIRMAN BUNDE referred to page 12, line 16, which sets out the procedures for an Alaska court to expedite enforcement and asked Ms. Behr to explain the current procedures. MR. BEHR replied, "Yes, I would like to talk about that because this is one of the advantages of this bill because each state has their own procedure and as I was sitting on this conference and having people watch us from all over the United States -- Texas has a habeas corpus proceeding -- what we'd do in the state of Alaska if I was representing a noncustodial parent and you would go in for an order to show cause - why the custodial parent was not allowing visitation - and they do not have expedited requirements that they go on the court calendar quickly, so the court would take them -- they take them on a quick basis, but this is a clear statutory mandate that these be treated on an expedited basis. And then the court proceeding is very limited because the judge in the other court -- the other state is only to look if there's a valid order, has it been modified, is there anything in the petition that shows there's a domestic violence order that was entered or something like that - and then what is the remedy that that person that's being denied visitation wants. That's all the court can look at. So, it should go a lot quicker. What happens now in a lot of child custody cases where if someone goes into enforcement, is they bring up what I call the smoke issues -- they relitigate the divorce issue, they relitigate whatever, and a court cannot do that quickly on their calendar -- to redo a whole trial. And the goal is the order is to be respected or - in an enforcement action. That's the goal of it." Number 1156 CHAIRMAN BUNDE asked Ms. Behr to address page 14, line 6, where a child would be endangered by the enforcement of an order and page 15, line 5, which speaks to the exceptional remedies in emergency situations where physical harm could come to the child. MS. BEHR considers this to be very important. She is aware that people do not have the money to hire an attorney to keep the order up to date. She stated, "What we wanted to make sure is if a parent had an old order that didn't represent the -- the absent parent just got out of jail for some kind of domestic violence or whatever -- and the mother can bring -- the custodial parent can bring this into court, the court on its own can take jurisdiction - kind of like a CINA action but it's not - they could take jurisdiction of it and then decide that it was not appropriate to enforce the order under these unusual circumstances. The expedited -- the exceptional warrant is to deal with the situation that Representative Green was talking about where they got a valid order but the person refuses to cooperate. And that's when the judge can send the troopers out." REPRESENTATIVE GREEN inquired if in that scenario the person is out of state, could the court of jurisdiction in that state actually intervene for the state court of Alaska. MS. BEHR noted the other state could ask for Alaska's assistance or Alaska could ask for the other state's assistance. She added that one of the problems is that people can move from one state to another very quickly. Number 1252 CO-CHAIRMAN BUNDE referred to page 16, line 1, relating to costs, fees, and expenses and asked Ms. Behr to address that section. MS. BEHR remarked that Alaska has an unusual rule for prevailing party in attorney fees cases; most states do not. This legislation is designed as an encouragement for other states to take the Alaska rule which is to award attorney fees to prevailing parties when an enforcement order is not followed. She commented that it is "an extra hook" to get people to follow the orders because of the costs involved. She directed the committee's attention to page 16, line 8, which says that a judge can decide not to award costs, fees, or expenses if it is clearly inappropriate. Number 1299 REPRESENTATIVE GREEN inquired if all the states are required to comply with the provisions, what will the state of Alaska gain by passing this legislation instead of letting it take its course. MS. BEHR said, "It's not -- maybe I should be clearer. This is not an area where Congress will act like they did in child support, where Congress said -- this is an area where the state -- child custody is a very parochial state issue -- which is when we designed the act, we made sure we didn't get into things like grandparent rights, stepparent rights because each state has their own thing with what kind of rights they want to give to people and so in order for us to join this, we have to pass the Act." REPRESENTATIVE GREEN questioned the situation where one state has adopted the Act and the other has not. He asked, "Does our having adopted it take precedent in that other state to have them enforce our orders?" MS. BEHR responded it would not trump the other state's law, but the expectation is that other states will adopt it. In the last week, five states have introduced this legislation which indicates to her that other states are seeing a need for it. She stated, "There'll be a transition period. The existing law -- we'll be able to enforce our orders so you don't have to worry about issuing an Alaskan order that will not be enforceable; it will be enforceable. It's just these extra benefits that we have here - we won't be able to use them with everybody." Number 1380 CHAIRMAN BUNDE summarized the intent of HB 335 is to reduce the opportunity or incentive for noncustodial kidnaping; where children are used in the battle of the ongoing unsettled problems between the parents. CHAIRMAN BUNDE announced HB 335 would be held in the House Health, Education and Social Services Committee.