Number 400 SSSB 27 - MISC. GRANDPARENT VISITATION RIGHTS JAMES ARMSTRONG, Senate Researcher to Senator Dave Donley, bill sponsor, gave the sponsor statement for SSSB 27. SSSB 27 would give grandparents the legal status to petition the court for visitation rights with their grandchildren. Under existing law, the court can grant an order that provides for visitation by grandparents in divorce and separation proceedings in cases where one or both of the parents have died. Grandparents themselves are not allowed to initiate such an action. SSSB 27 would give grandparents this standing to ask for those visitation rights if they were not initially provided for by the court. SSSB 27 does not require that visitation rights be given. It is completely up to the discretion of the judge, with the best interests of the child being the primary factor for granting such rights. REPRESENTATIVE CYNTHIA TOOHEY said she had been contacted by Lauree Hugonin from Alaska Network on Domestic Violence and Sexual Assault, and her concern was that the judge is not going to be filled in on all information pertaining to violence committed by the parents. The judge would possibly be granting these visitation rights without having the knowledge. That was a concern raised, but Representative Toohey did not believe that to be true. She believed that in determining the best interests of the child, the court should consider all relevant factors. She felt the bill was fine. MR. ARMSTRONG said that the terms for the best interests of the child is laid out in AS 25.24.150, Section (c)(9), which also lists other factors that the court finds pertinent. The judge does not have to grant the privilege. SHERRIE GOLL, read the position paper written by Lauree Hugonin, Executive Director of Alaska Network on Domestic Violence and Sexual Assault, into the record: "The Network supports the ability of grandparents or other relatives to keep healthy, established, ongoing relationships with children. We support the goal of allowing grandparents and others to petition for visitation. We do have a concern for children's safety when the perpetrator of domestic violence has access to the child during grandparent visitation. Often in domestic violence situations, the parents of the perpetrator, the grandparents, and other family members provide opportunities for him to see the children while the children are with them. This happens in many cases even when the judge has ruled that the perpetrator is not to have custody of or visitation with the children. Sometimes this access allows the perpetrator to get the children, take them away from their grandparents, and use them against the victim. "The grandparents can also be at risk if the perpetrator perceives them as colluding with the victim or with the court system. Many people, judges included, perceive domestic violence as a private matter between the perpetrator and the victim. Domestic violence impacts the children and the extended family members as well, and can put them all in danger. "The Network's concern applies to the first section of the bill where it says the court shall provide for visitation if it is in the best interests of the child. In determining the best interests of the child for custody, the court uses a list of criteria found in AS 25.24.150(c). Item 7 states that in determining the best interests of the child, the court shall consider any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household, or history of violence between the parents. "The Network believes in determining the best interests of the child for visitation, the court should give heightened judicial scrutiny to AS 25.24.150 (c)(7). Heightened scrutiny of this particular item will add a layer of protection for children and cause judges to carefully explore the potential for further danger to the child." MS. GOLL explained that the Network is concerned that this bill is saying that the court SHALL, unless they can find that to do so would not be in the best interests of the child. She is suggesting that in cases where in the original custody decision, the court has had to refer to AS 25.24.150(c)(7), because domestic violence or child abuse was an issue in the original custody decision. Then when grandparents or other persons are petitioning for visitation, the court needs to add heightened scrutiny to the case, based on the actual problems that people have while other people have had visitation with the children and allow the person who is not permitted to have visitation with the children to have access to the children in that way. REPRESENTATIVE TOOHEY asked if this had been discussed with Senator Donley. MS. GOLL answered that yes, as James inferred, Lauree did have an opportunity to speak to James and to the senator, and the senator did not agree with the logic of this, but she still wished the committee to understand her concerns. REPRESENTATIVE TOOHEY Ms. Goll if she did not believe the words "in the best interests of the child" would be sufficient. MS. GOLL answered that no, she did not. When changes were made to divorce and dissolution laws several years ago, one of the things that was introduced into dissolutions was the concept of heightened scrutiny. Custody and divorce cases take up a lot of court time. The court could place some parameters on the visitation rights in order to protect the child better in situations where domestic violence or child abuse has been an issue in the original custody decision. CHAIRMAN PORTER asked Ms. Goll if what she was saying is that on page 1, she would suggest that they add something to the effect, "In determining the best interests of the child, the court shall consider all relevant factors including those factors enumerated in AS 25.24.150(c) with heightened scrutiny of (c)(7)." MS. GOLL answered that was the basic concept. She would have it say, "If in the custody decision, Item (c)(7) was an issue, then the court would give heightened scrutiny to this determination about the other person's visitation." Number 550 CHAIRMAN PORTER said they could consider that when looking at amendments. MARLIS SCHMID, testified via teleconference. She is the grandmother of two children, ages eight and ten. The children want to see her but are not allowed since the stepfather is in the life of her daughter. The stepfather adopted the children a year after her daughter married him, and that she can prove was fraud. The children's father has always been in contact with the children on her telephone. She had raised these children and had them 70 percent of the time, because her daughter was working. The children's father called her number, since the telephone was hung up on him if her daughter was home, by her (at that time) boyfriend. Her daughter went to court, claiming that the father had no contact with the children. She asked her daughter at that time, "Tanya, how can you say that? You know this is not true." She said she did not want to hear about it. The father had always been in contact with the children, but her daughter did not want to hear about it. That is how the stepfather was allowed to adopt the children. She could not locate the father at the time before the adoption was final. She is being punished now. It has been two years in June since she has been allowed to see her grandchildren. The father always stayed in touch with his children. He wanted to see them. She kept her mouth shut. He came up from Oregon and she took the children to Soldotna to spend a week with their father, and she was there too. When she brought the children home, (indisc.) her own daughter came to her house and beat the heck out of her. Ever since then, she is being punished not to see the children. She has had the children overnight once. She is not even allowed to have phone contact. She feels that the children are being verbally abused by their stepfather. They hear her voice on the record-a-phone, but are not allowed to pick up the phone and talk to her. He laughs at them instead, and says, "Ha Ha, what are you going to do about it?" This kind of abuse is constant. She told them to tell her mother, and they say they do, but she tells them she does not want to hear about it. Her court order has been temporarily denied, and she cannot see her grandchildren. Her contact with them is limited to the telephone. She does not know what to do anymore, and hopes the Legislature can help her. Her grandchildren need to see her, she raised them and they know they are her number one. Number 665 CHAIRMAN PORTER thought if this bill were passed into law, she would have the opportunity, not a guarantee, to visit her grandchildren. If they are now out of state, that would probably further complicate it, but, this bill certainly would not hurt. He then asked Mr. Armstrong about Section 1, which seems to set up a standard of "in the best interests". Section 2 adds that the grandparent has established or attempted to established ongoing personal contact, and "in the best interests." MR. ARMSTRONG stated that currently the judge has the authority to put a qualifier on it, in Section 9, where it says, "This parent has committed domestic violence or assault." The judge can look at other pertinent information, other factors. REPRESENTATIVE CON BUNDE assumed a judge would be wise enough to look at the whole record before determining what is in the best interests of the child. CHAIRMAN PORTER asked about Section (b) on page 2, which adds to the proceedings that a grandparent may petition to join the adoption. Are you assuming the standards are going to be the same for the judge's determination during that proceeding as they were in the divorce proceedings? MR. ARMSTRONG answered that it sort of gives a general provision in other states and judging by the way section (2) was explained to him, Chairman Porter's assumption would be correct. Section 3 adds dissolutions. CHAIRMAN PORTER said he would like to ask the Senator about the adoption hearing, which is a new addition, but the Senator had to step out. He asked Mr. Armstrong if the established standards for a judge's decision in grandparent rights for divorces and custody hearings attach to adoption procedures? MR. ARMSTRONG answered that it seems to read that way, but he could not say for sure. Number 740 CHAIRMAN PORTER said that Subsection (b) is the one that adds the ability to intercede in an adoption procedure, and his concern is that unless we specifically mention it, that the standards to be used by the court to establish the best interests of the child, are not necessarily there. REPRESENTATIVE FINKELSTEIN understood Subsection (b) as just a limitation, not adding anything additional, but just to say that you cannot go and petition if you have already tried to request the court to do it previously, you cannot go and do it again, unless there has been a change in circumstances. CHAIRMAN PORTER clarified that Section 1 deals only with custody determinations. Is an adoption a custody determination? REPRESENTATIVE CON BUNDE said indeed it talks about relating to child custody and relating to adoption. That lead him to believe that they are two separate things. MR. ARMSTRONG said that in AS 25.24.150, is your concern as to whether there is a "best interests of the child" clause? CHAIRMAN PORTER answered yes. MR. ARMSTRONG assured him that AS 24.25.150 contains the whole list of what the judge should look at in determining the "best interests of the child." CHAIRMAN PORTER'S concern was that those were separated by an "or." That is the problem. He stated the committee would set this aside, and ask the Senator about that, and then come back to SSSB 27 before the meeting ends. MR. ARMSTRONG agreed to do that. CHAIRMAN PORTER noted that the language in Section 1 allows a grandparent or other person to intercede. He wondered what was implied by the other person, but this "other person" language does not follow into the other section. Is that intentional? MR. ARMSTRONG asked if he was referring to Section 2. CHAIRMAN PORTER answered yes. Getting back to the concern about domestic violence situations, he did not feel it would be offensive to the bill to add that language. REPRESENTATIVE CYNTHIA TOOHEY did not think so either. CHAIRMAN PORTER suggested on line 9, after AS 25.24.150 (c) that an amendment could be made to eliminate the period and add "with heightened scrutiny of (c)(7) if appropriate." MR. ARMSTRONG noted that he did have an amendment that addresses those concerns. CHAIRMAN PORTER asked Mr. Armstrong to first go get the answers to those two questions, and then the committee could deal with the amendment when Mr. Armstrong returned. Number 650 SSSB 27 - MISC. GRANDPARENT VISITATION RIGHTS (CONTINUED) CHAIRMAN PORTER held the bill for subcommittee referral. He then announced that they would continue the hearing on SSSB 27. SENATOR DAVE DONLEY, bill sponsor, came forward to address the committee's concerns. He understood there was a concern as to why the bill mentions other persons in the text, but not in the following section. The simple answer to that is because all through the statutes, other persons, as well as grandparents, can, not petition, but at the court's alone choice be granted visitation rights. But this bill does not give other persons the right to petition, it only gives grandparents the right to petition. While we only give grandparents the right to petition, every where we talk about what the court decides to do, we have to include other persons because the court already has the authority to give that to other persons, as well as grandparents. CHAIRMAN PORTER said the next question dealt with page 2, lines 6 and 7, where it seemed to be bringing in the ability to petition to be included in the hearing of an adoption for the first time, on page 2, line 7. The standards in the previous section, "the grandparent has established or attempted to establish ongoing contact." He asked Senator Donley if it was his interpretation that these standards would apply to this adoption. SENATOR DONLEY answered that it would only be "in the best interests of the child." That is the standard the judge should always use in order to grant the petition. We do not change that standard anywhere, that is real consistent in existing law. All this bill does is allow the grandparents the standing to ask for that for the first time. This is the same thing we have in every other state in the United States, it is just standing to ask. This bill does not affect the standard that the judge uses to determine whether he is going to grant that request from them. CHAIRMAN PORTER said his only concern is that it does not specifically say that is the standard when it deals with the adoption as it is stated in (b). 'After decree or final order relating to child custody is entered under those two statutes," then "OR relating to an adoption under AS 25.23, a grandparent may petition, only if," and then these are two other considerations. He understood that we want the ability to exclude that in an adoption if they have already petitioned and been denied at the original custody hearing. SENATOR DONLEY stated his staff had pointed out that in the adoption statutes, AS 25.23.125, it has a description of the interests of the minor to be adopted, and subsection (c) says the court may issue a protective order or other order that is in the best interests of the minor who is to be adopted. So clearly, the court could, if it was in the best interests of the minor, decline to allow visitation, or in fact issue an order to prevent visitation. He said his staff had prepared an amendment in case additional language was requested. His personal opinion was that it was just not needed. It is really doing something that is not addressed by this bill. It is really adding something that is very much a stand alone concern, because clearly, all that amendment does is create a new heightened scrutiny for the issue of potential dangers to the children from relatives, and that is clearly already provided for in the things the judge is supposed to look at in determining visitation, and would be or not be relevant with or without this bill because there are a lot of other people other than grandparents, and once again this does not change anything as far as the judge giving these visitation rights, or the standard the judge uses, it only says that grandparents may ask. He did not believe the amendment to be necessary, but if the committee feels this is something they really want to do, we went ahead and had the language prepared just to expedite the process. REPRESENTATIVE TOOHEY stated it was very clear to her that it is attributed to the grandparents' son or daughter, so you are flagging the possibility that the parents of a child who are accused of child abuse are going to come to the grandparents' house and abuse the child. It is not going to do anything except make it one step closer to safety for the child, and she would hate to be on the hot seat, saying that we did not do this, and this child was abused. She felt the amendment language would be the best way to go. She made a motion to adopt Amendment Number 1, which is as follows: Page 2, after line 13: Insert a new subsection to read: "(c) When determining whether to grant rights of visitation between a grandparent and grandchild under this section, AS 25.20.060, or AS 25.24, and when determining the terms and conditions to be attached to a right of grandparent visitation, the court shall consider whether there is a history of child abuse or domestic violence attributable to the grandparent's son or daughter who is a parent of the grandchild." Hearing no objection, the amendment was adopted. Number 730 REPRESENTATIVE TOOHEY made a motion to move HCS SSSB 27(JUD) out of committee with Amendment Number 1, individual recommendations and zero fiscal notes as attached. Hearing no objection, it was so ordered.