HB 334-CHILD CUSTODY;DOM. VIOLENCE;CHILD ABUSE  3:47:10 PM VICE CHAIR VAZQUEZ announced that the next order of business would be HOUSE BILL NO. 334, "An Act relating to visitation and child custody." 3:47:42 PM REPRESENTATIVE CATHY MUNOZ, Alaska State Legislature, explained that she had given a lot of thought to AS 25.24.150, and its judgements for custody. She relayed that she had met several individuals who had experienced significantly damaged relationships with their children due to the application of this law. She paraphrased from the Sponsor Statement, which read: HB 334 was introduced to give judges more discretion in determining the best interest of the child in custody cases. Currently, AS 25.24.150 includes a provision that if a parent has been accused of domestic violence that parent may not be awarded sole or joint physical or legal custody of the child. Although there is a rebuttable presumption in place to overcome this provision, it is a lengthy process involving the requirement to complete a one year batterer's intervention program. Domestic violence is broadly defined to include an ex-parte domestic violence order, a violation of an order, misdemeanor assault, or allegations of abuse. In 2004, HB 385 was signed into law which established the rebuttable presumption. The intent of this legislation was to ensure those with a criminal history of domestic violence were held accountable for their actions and that the children in question were protected. At times the provisions of AS 25.24.150 are used for custodial advantage. In these instances, the discretion of the court is limited and the best interest of the child is affected. The U.S. Department of Health and Human Services states, "Fatherless children are at a dramatically greater risk of drug and alcohol abuse." Additionally, they state "Fatherless children living in homes without contact with their biological father are twice as likely to drop out of school." HB 334 seeks to give flexibility to judges, while maintaining the presumption for those with criminal domestic violence convictions while ensuring that the well- being of children remains our primary priority. REP. MUNOZ read from the proposed bill, page 4, line 29: The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child except that the court may not consider this willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in domestic violence... REP. MUNOZ expressed her concern with the "engaged in domestic violence" language. She declared that there was a rebuttable presumption in which the parents accused or convicted of domestic violence on one or more occasions could complete a one year batters' intervention program, although the parent could only see the child under supervised conditions on a very limited basis during this year. She reported that Alaska had some of the toughest domestic violence laws in the U.S. She stated that the changes proposed in the bill would not weaken the laws, and the domestic violence orders or the process for filing would not change. She shared that the proposed changes to the law would require a conviction of domestic violence for those provisions of AS 25.24.150 to apply in custodial decisions, and would result in more equity, due process, and the best interest of the child to be the first priority in determining custodial arrangements. She shared an anecdote for the problems with the statute. 3:54:43 PM [Vice Chair Vazquez returned the gavel to Chair Seaton] REPRESENTATIVE MUNOZ, in response to Representative Tarr, explained that the current law could be used for custodial advantage, as it was as ex-parte filing which did not require both parties to be present. She shared that any contact during this time could result in a violation of the ex-parte order, and be considered a domestic violence incident. 3:56:35 PM CHAIR SEATON opened public testimony. 3:56:47 PM AL LEVY, Chair, Board of Psychologist and Psychological Associate Examiners, stated that he was representing himself and the interests of his clients. He declared that he was opposed to HB 334. He shared that he was a therapist in private practice in Anchorage, he worked with children and families many of which were families going through divorce, and that he had been addressing domestic violence and its effects for almost 30 years. He emphasized that passage of proposed HB 334 would "roll back the clock 30 years in terms of protecting children and victim parents to a time when there was little recourse for victims and children." He declared that children and victim parents had the right to live free of abuse and the threat of violence, they deserved safety. He stated that the proposed bill would cost too much money at a time when the state could least afford it, as it would dramatically increase costs to the State of Alaska. He explained that raising the bar from a finding of domestic violence by the preponderance of evidence to the conviction of a crime of domestic violence, which was beyond a reasonable doubt, would lead to increased demands on the state attorney general, as well as municipal prosecutors to prosecute every case of domestic violence. He stated that there would also be increased demands on the state troopers, police departments, the public defender's office, the Office of Public Advocacy, the courts, and the Office of Children's Services. He emphasized that the rebuttable presumption worked, it required the judge to find the domestic violence, and the current law did a good job protecting vulnerable children and victim parents. He acknowledged that errors for finding domestic violence when none had occurred could happen, although these cases were the exception, and not the rule. He declared that due process rights were currently observed, as parents facing accusations of domestic violence were afforded the opportunity to face their accuser, hear and see the evidence, and offer evidence in return. He stressed that the proposed bill was not restoring any lost rights to accused parents, but was, instead, denying the right to safety for vulnerable children and victim parents. He declared that raising the standard to a criminal conviction beyond a reasonable doubt was unreasonable and unrealistic to the victims of domestic violence. He said that education and better training for judges, custody investigators, attorneys, and social workers was needed, as this would increase knowledge, accuracy, and understanding about domestic violence. He relayed that safety was the highest priority, not parents' rights. 4:04:12 PM REPRESENTATIVE TARR mused that the challenge was that "human relationships are so complex." She pointed to the potential to behave in damaging ways during custody battles and the dissolving of relationships. She asked if there was a way to address these circumstances for who was telling the truth. MR. LEVY offered his belief that the primary need was for better training in education, as every dollar invested would bring ten times the return in dividends for savings in cost, heartache, and damage to people. He suggested to not cut the budget for the Alaska Network on Domestic Violence and Sexual Assault and instead, to provide the resources necessary for education and training. He suggested required training on domestic violence to police officers, social workers, judges, and other key players. He relayed that 10 percent of divorce and custody cases take up 90 percent of the court time. He acknowledged that these cases typically involved serious questions of harm, substance abuse, and domestic violence, and required close scrutiny by trained experts who knew what to look for. He suggested that more resources be provided to state custody investigators, as currently there was an income cut-off which made it difficult for many people, with income above that amount, to afford a private custody investigator. He reminded the committee that every dollar spent on prevention would "reap huge benefits down the road." 4:08:15 PM DEBBIE HOLBROOK, Attorney, relayed that she had practiced domestic relations and family law, as well as civil law over the past 40 years. She shared that she had been a mediator for the court system, as well as a guardian ad litem, and that she was aware that all the sociological studies on the adjustment of children after divorce was to make sure that the children had frequent and open access to both parents. She reported that the changes in the custody statute since 2004 had included references to domestic violence which did not require a conviction, so consequently there were now attempts to litigate domestic violence crime in the midst of civil divorce cases without affording the accused any of the criminal safeguards and protections afforded someone if they were charged with a crime. She opined that this had led to serious problems, and she stated her support of the proposed bill. She offered her belief that "the pendulum has swung too far on this domestic violence issue at least with regards to private custody cases. I have seen that allegations alone have become a bludgeon to be used against fathers in custody cases." She stated that once the allegation was made there was no longer a presumption of innocence. She explained that the issuance of an ex parte restraining order was the start of the difficulties for fathers, as this could result in no contact or only supervised visits with the children. She offered her belief that young fathers were not in the financial position to afford an attorney and were often quite naïve and unaware about the custody statutes, the repercussions, and the breadth of the definition for domestic violence. She relayed that her experience indicated that many women were encouraged to use this as a "weapon." She said that many judges were worried about looking soft on domestic violence, and often cited that their hands were tied by the statute. She opined that most people were not aware of how very broad the definition for domestic violence had become, and could now include texting, yelling, and telephone conversations. She declared that she was not trying to minimize domestic violence, but that requirement of conviction allowed the accused some protections when accused of something this serious. She opined that the legislature needed to be aware when removing obstacles, and that children needed access to both parents. 4:16:02 PM ANDY HARRINGTON said that he had done a lot of pro bono work over the years. He offered six points supporting his understanding that the approach of the proposed bill was not a good idea. He offered his first point that the history of domestic violence proven by a preponderance of the evidence before a civil court was an appropriate basis to apply the presumption that was currently in the statute. He stated that the requirement for a conviction proved before another court by a reasonable doubt would run the risk of erasing some of the progress that had been made over the last several years on the overwhelming domestic violence problem. He noted that the Alaska Supreme Court had already given the statute an appropriately narrowed interpretation which prevented it from being abused and misused in many situations, and that this should be taken into account. He suggested that the proposed bill could expand application of the presumption, as the history of domestic violence meant two incidences, or one incident that caused serious physical injury. He offered his belief that this needed to be thought through quite carefully, as it could broaden the application. 4:17:46 PM [Chair Seaton passed the gavel to Vice Chair Vazquez] 4:18:06 PM MR. HARRINGTON stated that there many reasons why there were more incidents of domestic violence than there were convictions, including under reporting, lack of law enforcement, and courts that needed to decrease hours. He suggested that, should the legislature couple this change with a significant increase in law enforcement, prosecutors, public defenders, and courts, it might then make some sense. He stated his concern with the disparate impact on rural and urban areas, as there was "an unfortunate reality that criminal law enforcement cannot be as responsive to Alaska's rural areas as it is in urban areas. We can't afford to achieve that equality." He offered his belief that this was another reason why the requirement for a conviction before the presumption of guilt was applied was not a good idea. He asked that the legislators not make up their minds based on hearing one side of an anecdote that may or may not be representative of what was happening on a larger scale. VICE CHAIR VAZQUEZ asked for him to cite the Supreme Court decision regarding this statute. MR. HARRINGTON, in response, relayed that, in 270 P.3d 737 (2012), the court had held that completion of a batterer's intervention program was not the only way to rebut the presumption, and that the Superior Court was not prevented from completing a best interest analysis. REPRESENTATIVE WOOL asked about earlier testimony that the definition of domestic violence had expanded to include texting, phone calls, and yelling, and whether this broader definition had now included more people "under the umbrella of domestic violence." He asked if this could preclude someone from having any visitation with their child. MR. HARRINGTON opined that these and similar incidences could be a violation of the domestic violence statute if committed in violation of an existing protective order. He expressed agreement that it was appropriate to be held accountable. He shared that, if the point was made that the definition of domestic violence was too broad, then perhaps it should be reviewed to determine if it encompasses items that it should not, and then adjust the definition. He offered his belief that the approach of the proposed bill was not the right solution to that particular problem. REPRESENTATIVE WOOL suggested that this may be a case by case situation. 4:23:13 PM JOHN HOAG, Attorney, said that he had sent in comments [included in members' packets]. He reported that he had volunteered and handled about 90 domestic violence cases pro bono over the past 9 years. He stated that rarely had he seen a case with one incident of domestic violence, as most cases had patterns of domestic violence that usually occurred over time. He expressed agreement with earlier testimony that it was "the most un- reported crime probably there is." He said that requiring a conviction was a bad idea, and he testified against the amendments. He clarified that attorneys were appointed if a person could not afford them in a custody case if there had been issues of domestic violence. He offered his opinion that judges were very reluctant to order supervised visitation, and that it was usually arranged through family or friends, and it was not a cost factor. He reported that the Supreme Court had deemed there must be a pathway for unsupervised visitation. He stated that the cases where this supervision remained in place were most often when the party did not follow the court directives. He urged the committee not to pass this bill, as it was his experience that most women did not use this as a weapon. He suggested that the definition of domestic violence be expanded to cover abusive relationships and the terrible effect on children. 4:27:01 PM KATHRYN SODEN, Senior Staff Attorney, Legal Program, Alaska Network of Domestic Violence and Sexual Assault (ANDVSA), stated that she was speaking in opposition to proposed HB 334. She shared that she had worked with ANDVSA for more than five years, and had represented men and women who had experienced domestic violence in family law cases. She expressed her concern that there were many reasons for a lack of criminal conviction for domestic violence, although the victims and the children still needed the protections of the law. She said that the rebuttable presumption law had protected children in many cases where there were not any criminal convictions. She shared two anecdotes, the first of which included four to five criminal charges for domestic violence being filed against the abusive mother, but subsequently being dismissed. She relayed that the domestic violence rebuttable presumption had then been applied and the custody of the children was awarded to the father. She stated that this made the children safer. In the second case, the mother had endured years of abuse from the father, but had never sought help from the police because she did not speak English and was isolated within an ethnic community. Again, although there were no convictions against the father, the court applied the rebuttable presumption law and awarded custody of the children to the mother. She stated that in both cases, when the presumption was applied, the abusive parent still had frequent regular and open contact with the children while that parent was required to get services to address the problem. She declared that the rebuttable presumption law was working as it should to keep Alaskan kids safe. She reiterated her opposition to the proposed bill. MS. SODEN, in response to Representative Tarr, said that, in her experience, an ex parte protective order alone was not considered as an incident of domestic violence, in order for the court to apply the presumption law. She said that the presumption law required a preponderance of evidence, which was not the standard for an ex parte that domestic violence had occurred. She relayed that the system could make the finding of domestic violence upon further litigation, as then both sides would have the opportunity to be heard. She said that it was not her experience that the courts would cut off kids from their parents for a year, and that the courts were very hesitant to take away visitation even in extremely abusive situations. She declared that it was important to keep the presumption law in its current state as it allowed the victim's parent the safety of having sole legal and primary physical custody until the abuser gets treatment for the issues. She stated that it was an extremely rare circumstance for the court to cut off all contact with the children. 4:33:18 PM SARALYN TABACHNICK, Executive Director, AWARE, stated that the proposed bill was going in the wrong direction for supporting victims of domestic violence, particularly children. She pointed out that not every victim of domestic violence even reported to law enforcement. She shared that her experience at AWARE was for children who had been ordered by courts to spend unsupervised time with an abusive parent, one that had been hurtful to their mother, a parent they were afraid of, and a parent who may be directly abusive to the child, as well. She stated that much more often at AWARE it was mothers who were trying to protect their children. The committee took a brief at-ease. 4:35:55 PM MS. TABACHNICK continued her testimony, stating that often the children were sent to be with a parent who terrified them. She reported that often this was a regular repetitive pattern. She pointed out that unless a child could articulate what was terrifying for them, there was not any protection for them, and that they could not tell until they felt safe. She continued and stated that children will not feel safe until they were free from harm and fear. She relayed that children were being raised learning that their needs and feelings did not matter, their boundaries were not respected or important, and they did not have rights to boundaries. She stressed that this set up the most vulnerable children to be harmed. She declared that she found proposed HB 334 "to be one of the most disheartening bills I've ever spoken to in my nearly 30 years at AWARE. If anything, we need laws that further protect children; not laws that make it more difficult to keep them safe." She reported that research had indicated that children were most helped and healed after divorce when both parents got along. She addressed the fear induced by domestic violence, and pointed out that texting and telephone calls by a person who has committed domestic violence were another source of fear. She stated that "we all deserve to live without fear and without concern for fear particularly in our intimate partner relationships and in our parenting relationships." 4:38:26 PM REPRESENTATIVE TARR relayed that there could be hundreds of phone calls and texts harassing an individual and creating a feeling of being in real danger. MS. TABACHNICK stated that these were power and control tactics which was what domestic violence was about, the control of another person by keeping them in fear. 4:39:30 PM KIRSTEN SWANSON, Attorney, paraphrased from a letter she had submitted to the committee, which read: [included in members' packets.] I am writing this letter in support of HB 334. This bill will address some of the unintended consequences in the domestic violence statutes. No one should be the victim of violence from a domestic partner, but the current statutes are encouraging unnecessary litigation and hurting children. Domestic violence restraining orders are civil cases, not criminal cases so the burden of proof is minimal. This makes it much easier for someone to now use the court system as a weapon against the other parent. Frequently, people will file a restraining order before they file for divorce or custody of their children. This allows the person who makes the allegation to kick the other parent out of the home, restrict all access to the children, freeze the bank accounts and change the locks. Once the parties are involved in the custody case any allegations of domestic violence have a tendency to severely curtail access of the parent being accused of abuse to their children. It also makes the case more litigious and hostile so that it is unlikely that the parents will be able to mediate their differences and successfully co-parent their children. The presumption in custody cases is that the non-abuser is the better parent. Therefore, a person who can convince the court that they are victims of past domestic violence will get full custody of the children. Unfortunately, the presumption advantage has encouraged people to exaggerate and make up stories to get the other parent labeled as a perpetrator of domestic violence. Even if the domestic violence allegation is more than ten years ago, has nothing to do with the children, does not include violence and was never previously reported to anyone the allegation is enough to immediately deny access of the other parent to the children. Children are then left confused and hurt as to why a parent they love has suddenly and without warning disappeared from their life. The increase in domestic violence restraining order hearings and domestic violence allegations in custody cases clogs the court system with unnecessary litigation. It costs the judicial system resources better used in prosecuting criminal cases of domestic violence. It encourages custody hearings to be contentious, winner take all affairs that make it difficult for parents to put aside their differences, put the best interests of their children first and learn to co-parent their children. HB 334 will actually protect victims of domestic violence and children in custody cases by removing the impetus for exaggerating and lying about prior arguments and disagreements. When the court system is inundated with questionable claims of domestic violence it has an impact of making domestic violence seem less serious. This hurts people who truly are victims in need of help as their cases end up delayed due to an overburdened court system. 4:44:17 PM FRED VALDEZ, Attorney, stated that he had primarily practiced family law for the past 35 years, and had been a prosecutor of domestic violence for 1.5 years. He said that he was against the proposed bill. He reported that the crime being charged was often not the first instance of domestic violence, as often it was not until after many incidences that the victim took the initiative and called for help. Hence, a standard of conviction of a domestic violence crime was not a good standard for change. He suggested other changes to guard against the use of domestic violence as a tool to gain advantage in the battle over custody. He stated that the judges had a very good grasp for these situations. He shared court room presentations of some texts, stating that they were "too vile to even repeat in this testimony. They threaten, they coerce, they call names..." He expressed agreement that these texts were about power and control, emphasizing that, as Alaska had a huge domestic violence problem, the proposed bill was a step backwards. 4:47:12 PM JOSEPH COULTER-KHAN read from a prepared statement, which read: My name is Joseph Coulter-Khan. I am fourteen years old. I am here to tell you why I think HB 334 is a step in the wrong direction. My father has not been convicted of domestic violence, but I am legitimately terrified of him. When I lived with him, I saw him yell constantly. I saw him beat up my sister and shove her down the stairs. I saw him constantly threaten my mother, my sisters, and me. He embarrasses me in public with his yelling and anger. I'm afraid of being with him. Every time I get a phone call my stomach drops, I start to sweat, to panic, pace, and go into a whole anxiety attack. I start hyperventilating. I don't want to live with that kind of pressure and anxiety. It is a negative energy and distracts me from my schoolwork and from doing the things that I love. Because my father has not been convicted of domestic violence, if HB 334 passes I would have to go with someone who has abused me for 10-12 years. Why should I be with him? Why should he have the right to me when he is the one who abused me? If he has a say in everything I do, he may make decisions that are not the best for me. He told me that if he gets full custody he will take me to Arizona and not let me contact my mother at all. He says bad things to me about my mother. Some mothers are too afraid to call the police because they are afraid of what the abusers will do to them when they get out. So then there are abusers who get custody because they aren't held accountable for their abuse. My childhood was stressful and now that I'm away from my father I'm feeling better. If I have to spend more time with him, it will waste the rest of the childhood that I have. I won't have a regular childhood. You don't know my father. You don't know what he's done. But there is no conviction of domestic violence. HB 334 violates my rights as a minor to safety from my abusive father. 4:50:54 PM CATHY COULTER-KHAN said that she was also a victim of domestic violence, and shared her educational background, including that she was a Fulbright Scholar and a PhD. She stated that she had spent more than 20 years in an abusive marriage in which she was physically and emotionally abused. She shared an incident of violence in which her husband was subsequently arrested. She stated that she did not leave simply because she did not have the means to leave and she could not see an escape route. She did not know where she would go and how would she support herself and her children. As a result, she denied everything and the charges were dropped, and there was not a conviction for domestic violence. She pointed out that the proposed bill would not have allowed that instance of domestic violence to be consequential in a current hearing, as it had happened more than five years prior. She explained that abusers would isolate, denigrate, and cut their victims off from any source of independence. Life was a series of crises and day to day survival. She relayed instances of abuse, shame, and mockery her husband had heaped on her children until one of her daughters had entered the crisis center during her junior year in high school. She pointed out that there had never been a conviction of domestic violence. She reported that it was not until after more than 20 years of abuse that she was able to leave, because she had a job that would support her, and she had family and friends who supported her. She stated that this was her fourth year of divorce litigation, and that her husband had not paid any child support for almost three years, even as he left her with marital debt and froze their assets. She declared that he was using the legal system to perpetuate power and control, and that custody of the children was a means to exert control. She acknowledged that her evidence was flimsy, as there were not any convictions, and it was difficult to put together sufficient evidence to protect her children. She asked how women without an education, a job, or a family to support them could get a conviction. She stated that requiring the conviction was to support the abusers, perpetuate the abuse, and endanger the children. She stated her opposition to the proposed bill. VICE CHAIR VAZQUEZ noted the committee was running out of time and "we're going to have to cut off testimony on this particular bill. I apologize." [HB 334 was held over.]