HB 13-SHARED CHILD CUSTODY: BEST INTEREST  4:30:23 PM CO-CHAIR ZULKOSKY announced that the final order of business would be HOUSE BILL NO. 13, "An Act relating to shared child custody; relating to relocation of a child out of state; and relating to a presumption of the best interests of the child in child custody and visitation determinations." 4:30:43 PM REPRESENTATIVE GEORGE RAUSCHER, Alaska State Legislature, as prime sponsor, presented HB 13. He explained that HB 13, the shared parenting bill, recognizes that children deserve both parents if they are fit, loving, and capable. He said research has shown children have the most productive outcomes when both parents are active in their children's life, regardless of current marital status. The bill intends to mitigate high conflict situations seen in child custody cases with the presumption that both parents have equal parenting time in the best interest of the child, he continued. Current statutes state neither parent may have preference over the other parent and allow for 50/50 physical custody to occur, but do not presume both parents are equal under the law. Representative Rauscher stated that the government cannot compel parents to be active parents, but the government can allow for the environment to occur, except in cases where the mother or father or both seriously endanger the child's physical, mental, moral, or emotional health. He said HB 13 would allow for the presumption to be rebutted through clear and convincing evidence under the child's best interest guideline [AS 25.25.150(c)]. He further related that the bill would allow both parents to develop a [parenting] plan conductive to their child's best interest. REPRESENTATIVE RAUSCHER maintained that current statutes create a winner-take-all mentality in favor of one parent through at- fault litigation practices. He stated that if the presumed custodial parent wins physical or sole custody, conditions for parental alienation, custodial interference, absence, high conflict, or ancillary effects such as alcohol, drug abuse, and mental health collapses can take root if the parent is still pursuing high conflict methods and tactics. He said HB 13 would place children first by giving them the opportunity to develop strong parent-child relationships, place mediation for parenting plans ahead of litigation, allow for stability by tightening relocation loopholes, mitigate parental alienation to the targeted parent and extended family, and strengthen the intergenerational connection in families. Representative Rauscher added that he believes shared parenting is a human right and that children have a human right for a positive, healthy parent-child relationship regardless of marital status. 4:35:23 PM REPRESENTATIVE RAUSCHER provided a sectional analysis of HB 13. He said Section 1 would add intent language stating the ensuring of frequent, continuing, and meaningful contact of a child with each parent and that the shared responsibility is in the best interest of the child. REPRESENTATIVE RAUSCHER said Section 2 would define parenting time and state that the best interest of the child is shared parenting but would allow that presumption to be rebuttable with clear and convincing evidence that shared physical custody, joint legal custody, and equal parenting time is not in the best interest [of the child]. He related that [Section 3] would require the parents to consult one another when making major decisions regarding the child's health, education, and general welfare. He explained that [Section 4] deals with relocation of a child and would provide for constant procedures from both parents. It describes the items necessary for a court accepted parenting plan and would provide for a rebuttal presumption that a parenting plan, as agreed to by both parents, is in the best interest of the child. REPRESENTATIVE RAUSCHER specified that Section 5 would amend AS 25.20.090 by replacing the term "child custody" with "physical custody" or "joint legal custody" and would direct the court on what factors to consider, such as the child's preference, the child's needs, home stability, and willingness of each parent to facilitate a continuing close relationship with the other parent. He conveyed that Section 6 would allow for the rebuttal presumption when determining the best interest of a child. He said Section 7 provides that denial of shared physical custody or joint legal custody shall be stated on the record. 4:37:22 PM REPRESENTATIVE RAUSCHER stated that Section 8 deals with the modification of a custody visitation order while a parent is deployed. He related that Section 9 would allow the court to award attorney fees and cost of actions when attempting to alter custody awards, and it would direct the court to consider the financial resources of each party. He said Section 10 provides definition for joint legal custody and shared physical custody. He conveyed that Section 11 would provide that determining the best interest of a child shall [include] two additional factors the distance between a child's residence and each parent's residence, and if a parent is incarcerated. REPRESENTATIVE RAUSCHER explained that Section 12 would replace "joint" physical custody with "shared" physical custody in [AS 25.24.150(g)] regarding a history of domestic violence. He said Section 13 would provide that the court shall consider false or frivolous allegations of sexual assault; domestic violence; child abuse, abandonment, or neglect; or [the providing of] false or deceptive financial information [to the court]. He stated that Section 14 would include a parenting plan in the written agreement of the financial decree of the dissolution. He said Section 15 would repeal AS 25.20.060(c), which is the current [subsection] of statute regarding awarding shared custody to both parents. He concluded by relating that Section 16 would [add a new section] providing that this Act is applicable to custody orders issued on or after the effective date of this Act. 4:39:37 PM REPRESENTATIVE MCCARTY expressed his support for HB 13. He said he still needs to review the bill, but that there is a desperate need for this, and the courts need direction as to what are the guidelines. REPRESENTATIVE RAUSCHER stated he doesn't bring HB 13 before the committee believing it is ready to go out the door. He said he is open and acceptable to any comments that would make the bill be what it should be. 4:41:02 PM REPRESENTATIVE PRAX remarked that the committee needs to think about HB 13 quite a bit before acting on it. 4:41:45 PM CO-CHAIR SNYDER stated she is trying to better understand the context and scenarios that would be impacted or result from the proposed legislation. Regarding the need for the bill, she inquired about the frequency of the problems that the bill is trying to address. REPRESENTATIVE RAUSCHER responded that the invited testimony would help provide an answer. 4:43:03 PM CO-CHAIR ZULKOSKY opened invited testimony on HB 13. 4:43:20 PM DAVID VESPER, Legislative Director, The Fathers' Rights Movement, provided invited testimony in support of HB 13. He stated that Alaska has a winner-take-all judicial system for child situations, and that many Alaskans lack adequate representation heading into a child custody case. He maintained that current statutes encourage high conflict relationships between parents that can result into parental alienation, domestic violence, drug and alcohol abuse, criminality, and mental health issues for the parents, and that children often suffer from abuse, mental health issues, and challenging outcomes going into adulthood. These issues can be both inter- generational and inter-sectional, he added. MR. VESPER said social science and psychological research shows that children benefit the most with intact families, but when this is impractical researchers assert that equal and shared physical custody offers the next best possible outcomes for children. He stated that current Alaska statutes do not presume both parents with equal custody, they only allow it. He cited Alaska Civil Rule 90.3 as defining joint physical custody as a period [specified] in writing [in the custody order] of at least 30 percent of the year. However, he continued, no child has ever said they love one parent 30 percent of the time and the other parent 70 percent of the time. 4:45:10 PM MR. VESPER argued that the judge is placed in an uncompromising position when determining if any allegations cited in the case go against AS 25.24.150(c) and to what degree. So, he stated, common tactics in litigation can include allegations of parental alienation, domestic violence, drug and alcohol abuse, military status, physical and psychological health, and even immigration status; all of which have been used against the other parent in Alaska. The judge must award custody, he continued, which is much like awarding the winner in this winner-take-all system. MR. VESPER further argued that this is a human rights issue for children as well as a civil rights issue. Regarding racism, he stated that parents who are black, indigenous, or people of color (BIPOC) are most likely to lose their children then are white or Asian parents; and BIPOC and bi-racial children are less likely to be reunited with their parents or the other parent if that happens. Regarding gender inequities, he said mothers are awarded either sole custody or primary custody 85 percent of the time. He maintained that these inequities permeate into the next and succeeding generations or become intersectional by affecting society with increased drug and alcohol abuse, lowered education attainments, higher suicide rates, higher teen-age pregnancy rates, higher crime rates, and increased sexual, domestic, intimate partner violence. He stated that fixing the family will begin to fix the issues that plague Alaska's society and that cost the state millions if not billions of dollars. MR. VESPER noted that this type of legislation recently became law in Kentucky, Arkansas, and West Virginia. He said HB 13 would place mediation ahead of litigation, expand judicial discretion, address the relocation issue with many Alaskan families, and preserve the child's best interest standard. In response to Representative Kurka, Mr. Vesper agreed to provide the data cited in his testimony. 4:50:44 PM DIXIE BANNER, State Director, Alaska Fathers' Rights Movement, provided invited testimony in support of HB 13. She stated she is representing the grandparent rights integrated into the family rights. She said both genders are impacted by the current laws. She related that in her own family the issue has gone on for 45 years - her mother left when she was five years old and her father took over the children, now she has gone through her own traumas, and her son is presently going through this with his stepson. The system must change, she advocated, or it will continue. MS. BANNER noted that abuse and neglect have financial cost to the state along with human cost. If parents are required to take accountability for their children, she stated, there will be fewer social issues. She related that her husband has been alienated [from his children] for 19 years and the cycle continues with alienation from his grandchildren. She urged that this issue be fixed so this broken system will stop. She said if other states can change the system and reduce domestic violence, it can also be done in Alaska. She noted she believes in the parenting plan because it would require that both parents be involved and held accountable for their children's actions. 4:54:50 PM CO-CHAIR ZULKOSKY opened public testimony on HB 13. 4:55:33 PM ALLEN BAILEY, Esq., testified that he has been a family lawyer in Anchorage for 37 years and a prosecutor for an additional 10- 11 years. During these years, he related, he has been representing clients who have been impacted by domestic violence and their families in family law matters such as child custody, divorce, custody modification, and relocation. MR. BAILEY said children are not an animal like a dog or cat so that time can be divided without affecting their developmental issues, nor are children an item of property like a truck or an investment account that can be divided down the middle. He stated that developments in family law are really society's way of permitting people who have been victimized, or who would like to end their relationship, to achieve a future without someone else controlling them or someone else abusing them. He said he will submit further written remarks to the committee. 4:57:41 PM RITA ALLEE, Esq., testified in opposition to HB 13. She said she has been a domestic relations lawyer in Alaska for 46 years. She stated that the subject of the complaint is AS 25.24.150, the statute which addresses the needs of the children, the capability and desire of the parents to foster those needs, the child's preference, love, and affection existing between the parent and child, the length of time the children have been in a stable environment, the ability of the parties to facilitate the relationship with the other parent, and questions of domestic violence and substance abuse in the home. This statute, she explained, is directly targeted to issues of importance regarding the best interest of the children, and this statute requires that the judge hearing the case make findings of fact on each of these cited elements. MS. ALLEE related that foundational to Alaska custody law is the belief that a robust relationship between a child and both parents is in the best interest of the child. That is foundational to the court's examination of this issue, she further related, and there will be a direct finding in each case regarding facilitation of that relationship by each of the parties. She stated that the complaint seems to be that it is necessary to focus on 50/50 timesharing between the parents, the point of which can only be a focus on fairness to the parents. She said it's important to recognize that fairness to the parents is, by definition, not necessarily the same thing as the best interest of the children. She further stated that Alaska has a gender-neutral statute closely targeted to the best interest of the children. The proposed statute, she argued, focuses on something entirely different, which is fairness to the parents, and therefore she is opposed to HB 13. 5:00:51 PM MARIANNA MALLORY testified in opposition to HB 13. She related her belief that the bill would be harmful to domestic violence victims and their children. She said the current practice in Alaska is already shared custody, but it is not presently mandated. This proposed change in law, she stated, would make shared custody the standard for all families and raise the burden on victims to overcome that standard. She maintained that raising this burden of proof will negatively impact victims who cannot afford attorneys and do not have the skills of an experienced litigant. MS. MALLORY said another matter of concern is the proposed new best interest factor that adds whether a parent made a false or frivolous allegation of sexual assault, domestic violence, child abuse, child abandonment, child neglect, or provided false or deceptive financial information to the court. She argued that if a victim is ultimately unable to properly articulate her case and the crimes committed against her, this new proposed interest factor would punish her for presenting her concerns at all. Victims are often inundated with false claims and accusations from the perpetrator of violence following their reporting, she continued. Blanket denials of all allegations by the perpetrator are common, she added, and if the victim does a poor job presenting her case this bill would increase the ability of the perpetrator of violence to use the system against the victim. Ms. Mallory stated that victims of domestic violence, sexual assault, or child abuse are already often justifiably skeptical and mistrustful of the Alaska court system, and they often do not feel it is designed to protect them and their children. This [proposed] change, she further stated, would only instill further fear in victims of the justice system while creating barriers by preventing meaningful access and creating an order that is not truly in a child's interest. 5:03:50 PM ALESHA P. testified in opposition to HB 13. She stated that it sounds like somebody who is an abuser, whether male or female, woke up one day and said, "I need more rights because it's not working in the courtroom ? they are ruling against me, and abusers like me." She said she therefore opposes HB 13. 5:04:31 PM TARYN BIRD, Esq., testified in opposition to HB 13. She noted she is a divorce and custody attorney who has specialized in domestic violence and family law for seven years. She stated she agrees with Mr. Allen Baily and Ms. Rita Allee regarding their sentiments and concerns with HB 13, and she agrees with their position. She said that this proposed legislation ignores the reality of the landscape of civil divorce and custody cases in Alaska. Most of [her] litigants, she related, are pro se and under the current statute it is hard enough as a practiced attorney to fight for the rights of the victim and for the safety of children when there is a preponderant standard for the domestic violence presumption. She argued that HB 13 would create a windfall to individuals who can afford representation and would disadvantage those who cannot, which most often are victims of crimes of domestic violence or children of abuse. MS. BIRD noted that multiple concerning provisions with this bill were voiced a few years ago when a similar bill was brought before this committee, and [concerns] were voiced recently by many attorneys in Alaska when this legislation was proposed. She asked the committee to consider what HB 13 fails to say. What deficiency is this bill addressing? She maintained that the law presently does not have the issues that have been presented by the writers of the bill. She said the vaguely referenced custody issues and statistical facts from other states do not define the state of Alaska, do not define Alaska's law, and do not define how Alaska's judges interpret the facts, look at the evidence, and make a determination in the children's best interest. The execution of the law by the courts following the best interest statute, she continued, does lead to good orders that consider the children's needs and not the parents' needs. 5:07:27 PM CO-CHAIR ZULKOSKY closed public testimony on HB 13. She urged that anyone else wishing to testify submit their comments online to the committee. CO-CHAIR ZULKOSKY announced that HB 13 was held over.