HB 25-HEALTH CARE SERVICES DIRECTIVES    The committee took up CSHB 25(JUD). CHAIR DYSON asked Jason Hooley, HES committee aide, to distribute copies of the latest proposed committee substitute (CS) for the bill. He told members several outstanding issues remain, such as considering a second medical opinion regarding decisions about withdrawing/withholding life support systems. Modifying that provision was being considered because when dealing with somebody who is comatose, second opinions are available in hospital settings; however, second opinions may not be available in the field. Also, a second issue, stopping CPR after going through the widely understood protocols may also come up. He noted that Senator Guess and Senator Davis might have a proposed amendment dealing with pregnancy. In addition, some language about severability will probably be inserted, in case any portion of the bill is challenged and declared as unconstitutional. "I'm told by the bill's sponsor that this is already in Alaska law and doesn't need to be reiterated, but it does no harm to reiterate it in the bill," he said. SENATOR DAVIS moved [to adopt] the Senate committee substitute (CS) for CSHB 25 (HES), version C [labeled 23-LS0137\C, Bannister, 4/16/04] as the working document before the committee. CHAIR DYSON asked if there was any objection. There being none, it was so ordered. CHAIR DYSON asked if anybody wanted to testify today who would not be able to testify at the next HES meeting scheduled for Monday [4/19]. Seeing and hearing no response, Chair Dyson announced that CSHB 25(JUD) would be held in committee until Monday. # ^#HB385 HB 385-AWARDING CHILD CUSTODY  The committee took up CSHB 385(JUD). MR. HEATH HILYARD, staff to Representative Lesil McGuire, presented CSHB 385(JUD) on behalf of the sponsor. He said the bill went through several iterations before today, and in looking at version W, he reflected that during the interim, concerns were raised on behalf of the Alaska Court System. During deliberations in the House Judiciary Committee, work was done with Doug Wooliver from the Alaska Court System and Representative Gruenberg, who had similar concerns, to present a clean bill, today. HB 385 establishes a rebuttable presumption that must be overcome by a preponderance of evidence in a situation where there is a custody debate and there has been prior domestic violence in the relationship. The general concern is that it's nearly as harmful to children's development and growth to witness domestic violence as it is for them to experience the violence. MR. HILYARD referred to page 4, lines 4 to 14, (h) as the essence of the rebuttable presumption. It can be overcome, but to do so, the perpetrating parent has to successfully complete an intervention program for batterers, where reasonably available. He noted "where reasonably available" was inserted at the request of the Alaska Court System. He read, "that the parent does not engage in substance abuse, and the best interests of the child require that parent's participation as a custodial parent because the other parent is absent, suffers from a diagnosed mental illness that affects parenting abilities, or engages in substance abuse..." Mr. Hilyard said this is a child protection measure and the intent is to look towards the child's best welfare. There may be instances where an abusive parent may ultimately be a better choice, at least for temporary custody, he added. CHAIR DYSON said he assumes there has been a conviction of domestic violence, not just an accusation. MR. HILYARD replied correct. He said there have been concerns regarding domestic violence claims being made at any time, and abusively using those claims in a custody battle. Clarifying that a parent has a history of perpetuating domestic violence under (g) of this section would address those concerns; we're looking for frequency, severity, and recency. There has to be an established history or pattern recognizable by the court, he added. CHAIR DYSON noted Mr. Hilyard did not use the word, "conviction" in his response. MR. HILYARD said perhaps Mr. Bailey could address that question. MR. ALAN BAILEY, an Anchorage attorney, testified via teleconference and informed members that HB 385 does not require a conviction for domestic violence. In normal child custody actions, the burden of proof is by the preponderance of evidence. A criminal conviction would require proof beyond a reasonable doubt. That would benefit the batterer to the detriment of family members. CHAIR DYSON asked if Mr. Bailey was comfortable with HB 385 indicating that the mere accusation, or repeated accusations, wouldn't be enough to prejudice the situation. MR. BAILEY said otherwise it would be necessary for the court to find by a preponderance of evidence that incidents of domestic violence occurred. That would be after a contested hearing whereby the victim's evidence and the alleged batterer's evidence would be heard in court by the judge. CHAIR DYSON acknowledged that both he and Mr. Bailey have seen cases where both the accusation and the restraining orders were issued. Until the subject of the restraining order could get into court and make a case, there was a restraining order in place. He said, "And may I infer that the judge would not automatically take the fact that a restraining order had been issued by some other judge as 'prima facie' evidence that domestic violence had occurred." MR. BAILEY confirmed this was correct. Those emergency orders are called "ex parte orders" and don't involve the other party being served and having a chance to present evidence. Those types of orders would only be useful in a custody case to demonstrate, "Yes, this victim did report it to someone," but it would not eliminate the necessity of proving that domestic violence occurred in a contested setting. SENATOR GUESS referred to Section 5, which deals with domestic violence, but doesn't deal with sexual assault. She referred to (g) and asked why sexual assault wasn't included in that section. MR. HILYARD responded he couldn't think of a particular reason that it was omitted. MR. BAILEY responded that it wasn't specifically mentioned because any assault under AS 11.41, which would include sexual assault, was a part of the domestic violence definition in AS 18.66.990; "Therefore, it's covered," he said. SENATOR GUESS asked if sexual assault is included in the definition of domestic violence, so that sexual assault of another parent, child, or domestic living partner would be included under the definition of domestic violence. MR. BAILEY said correct. AS 18.66.990 contains a list of definitions, including "domestic violence." Chapter 11.41, "Offenses Against the Person" includes everything from murder to fourth degree assault. SENATOR GUESS asked how "a child" is defined throughout the bill. She referenced page 3, line 22 or page 4, line 1. MR. BAILEY replied this was included because sometimes children in the household are not children of the family; they may be stepchildren, or visiting children. The purpose is to reduce, as much as possible, incidences of violence in a child's life. SENATOR GUESS said she agreed, but wanted statutory clarification. MR. BAILEY referred Senator Guess to AS 18.66.990 for a definition of "domestic violence," and to Chapter 11.41, "Offenses Against The Person" to find "sexual assault." MS. TRACY GOULD testified in support of the amended status of HB 385. She relayed on June 21, 2001, a divorce primary custody case was granted in Fairbanks. During the hearing the judge refused to consider restraining orders and ignored a frightening court-ordered custody investigator's report. The judge followed that up with instructions for both parties to co-parent, despite the dangers in the situation. Four days later, on June 25, with the children a short distance away, there was [indisc.] thirty- six times by her ex-husband. She said this was her best friend and a dedicated mother and unfortunately she wasn't the only parent murdered in that area; there were two, maybe three others. She told members HB 385 would help with child custody and domestic violence. MS. CHRISTINE PATE, an attorney with the Alaska Network on Domestic Violence and Sexual Assault, a family law attorney for approximately ten years with Alaska Legal Services, and director of the shelter program in Sitka for 2.5 years, said she has been in her current position for approximately five years where she runs a pro bono program for victims of domestic violence and sexual assault in civil cases. She screens women who are trying to leave violent relationships and are confronting obstacles in the divorce and custody context. She said the answer to why women in violent situations don't leave is because there are many obstacles, whether financial, safety, or family. Separation is the most frequent time of brutality for victims, so they may decide to stay because it is safer. Many people stay because they are afraid of losing their children in divorce/custody cases. Once a victim has made the physical decision to leave the batterer, custody litigation often becomes a new front for the batterer to exercise power and control over the victim. Batterers often threaten that victims will lose custody if they leave the relationship. MS. PATE continued that some studies have shown that abusive fathers who contest custody cases win up to 70 percent of the time. In Alaska courts she has seen a battered woman going into court and ending up with either joint custody or losing custody just because of daring to allege domestic violence or sexual assault. There are many reasons for this, such as financial, since the woman may not have as many financial resources. The nature of domestic violence itself is that sometimes batterers present better in court than the victim. Also, there is often a lack of evidence; there isn't corroborating evidence since these are things that happen in private. In addition, there is a lack of training of many judges, child custody investigators, and guardians ad litem, who are the decision-makers in many of these cases. While the general understanding of domestic violence has increased over the last 20 years, the evolution of state custody laws has moved away from holding battering parents accountable in the family law arena. 2:19 p.m. MS. PATE told members Alaska family supports are focused on mediation, joint custody, and family parenting. These concepts stand in sharp contrast to social science literature about domestic violence, and the recommendations of several national organizations. [Indisc.] concepts of family law to protect the safety of victims of domestic violence and the well being of children. The rebuttal presumption against the parent in HB 385 would take some discretion out the hands of judges, discretion that has been very harmful to victims of abuse. To the extent victims feel they will lose custody in court or will get unsupervised visits, they may not leave the relationship. She referred to a specific situation where she had to explain to a woman whose husband had been convicted of felony assault and who had repeatedly abused her and her children, that there was no guarantee the woman would get supervised custody in court. The court process traumatized the woman. Victims continue to be baffled by the court's lack of focus on their safety, and it causes them to lose faith in the court system; when victims lose faith in the system, they stop using it. MS. PATE addressed joint legal custody, and said courts routinely order an abusive parent to have joint legal custody of children. Currently there is presumption in the law that joint legal custody is in the child's best interest. The Alaska Supreme Court has found that a history of abuse between parties should make joint legal custody inappropriate. Despite the precedent and knowledge that it's dangerous for victims to have continuing communication and contact with abusers, family court judges continue to put joint legal custody orders in place in domestic violence cases. MS. PATE said she wanted to speak in support of amending the prime friendly parent factor in the best interest factors to make an exception for victims of domestic violence. Explaining the friendly parent provision of Alaska law to victims of abuse is one of the hardest and most confusing things that she counsels victims about. Harmonious co-parenting envisioned by this factor is impossible and often dangerous in a family law case. If the court believes there was domestic violence, it might relax a parent's responsibilities under this factor. However if the court does not believe the domestic violence accusation or minimizes it, the protective parent is penalized under this factor and perhaps accused of "parent's alienation syndrome." That syndrome is a false syndrome started by Dr. Richard Gardener (ph) and is widely discredited by professionals and courts across the country. Under the current law, despite concerns about safety, the woman must appear to be friendly to the other parent and permit visitation or risk losing her children. "Clearly this isn't the message we should be sending to victims of abuse." MS. RONDA BLOUGH, Kenai, referred to her proposed amendment to HB 385, and said domestic violence could probably be prevented if there were better custody laws. She said verbal violence has been discredited; she believes with the addition of equal custody access to both parents at the beginning of a divorce or separation, a lot of one-time offenders or violations by people who aren't normally offenders would probably be alleviated. MS. PAIGE HODSON, Anchorage, testified as follows: I am the person that brought this issue to the attention of Representative McGuire. I'd like to tell you a little bit about the background behind this bill to put a personal face on it. I am a divorced single mother of two children, ages 13 and 6. I am also a court-appointed special advocate for abused and neglected children, a former volunteer at the Intermission Crisis Nursery, PTA president, a businesswoman, and a domestic violence survivor. I was in an abusive marriage for 11 years. Physical abuse occurred 1-2 times per year, and the remainder of the time was permeated almost daily by verbal and mental abuse. I was shoved, pushed into walls, thrown against furniture, thrown off a deck, spit upon, and called many unmentionable and profane names. I was told I was stupid, ugly, and worthless. Most of these things happened in front of my eldest child-- my daughter. I worked hard on trying to fix my marriage, naively thinking it was something I could fix. I never believed the police could help me. I thought I had to handle it on my own. I struggled to help my family and eventually convinced my husband to go to marriage counseling. After four years of counseling, I realized things were not going to change. In fact, the therapist eventually had to see us separately in fear for my safety. As my daughter grew older, I saw more clearly the impact of my husband's behavior on her. He was also beginning to direct his abusive behaviors at her. I knew I had to leave for her and my new infant son's well being. I felt it was my responsibility as a good parent to serve as an appropriate and safe role model. TAPE 04-23, SIDE B    MS. HODSON continued: When I told my husband of my wish to divorce he told me, "I will say or do anything to prove you an unfit mother. And if I can't, I will take the kids and you will never see them again". I believed he would act upon his threats. He did not prove me wrong. He filed for custody and set about making every outrageous allegation possible. I trusted the judicial system, at the outset. I trusted that the children and I would be protected and the judge would construct visitation that was safe and stable. As the process moved forward, however, I found my world turned upside down. All the literature, public service announcements and common sense told me I was responsible for getting out and protecting my kids, yet in the court deciding custody issues, I was pressured and even threatened not to raise those concerns. The system was fraught with pressure at every turn to accept an unstable and unsafe 50/50 custody schedule, even for a nursing infant. I was blamed equally for the violence. Amazingly, mine and my children's reasonable fears about their father's abuse and inappropriate parenting were pathologized. It was implied by the court that if I didn't cave in to the shared physical custody I would be punished by having sole custody awarded to the children's father Suddenly, the domestic violence I experienced was euphemized as "high conflict divorce." His verbal abuse of the children and me was deemed "communication problems." Moreover, incidents of child abuse and physical domestic violence were minimized and called a "difference in parenting styles." The toll on our eldest child of unsupervised and increasing visitation [indisc.] the court was enormous. She would kick, struggle, scream and cry as he carried her bodily from my home for visitation. She chewed her hair and pulled it out. She picked at her skin so often it bled. She had stomachaches prior to visits with her father, crying jags, and although tested as a gifted child, she nearly failed fourth grade. She reached out to many trusted adults for help, yet the court failed to respond. The baby was returned from each visitation dehydrated, hungry and with diaper rash so severe he was bleeding. Once, as a toddler, he was returned with a black eye and disclosed his father had hit him. Ultimately I prevailed, but it was only after being dragged through two full custody trials, which ended up being nearly five years of litigation. I have sole legal and primary physical custody, but my ex-husband was afforded substantial unsupervised visitation. The children are still not protected. My daughter now says that when the verbal abuse begins that she copes by "going off to another place in her head". My little boy tells me he tries to hide behind furniture or pretend he doesn't exist. My story isn't as egregious as others you will hear today. While trying to understand what was happening to me in court, I found that my case was representative of the systemic failure of the courts to protect domestic violence victims and their children. I found women and children all over the country - moreso in Alaska - with similar experiences. I found an alarming percentage of abusive parents being awarded sole custody. The bill before you is the result of nearly 3 years of researching and networking to find the best statutes in the country, with strong support from many professional organizations involved with the protection of children. This bill brings our child custody statutes in line with what the Legislature has already intended in its child protection statutes and with what has been recommended by Congress and the National Council of Juvenile and Family Court Justices. It also brings our dated statutes in line with the voluminous current research about the effects of domestic violence on children and parenting. CHAIR DYSON asked Mr. Hilyard if the sponsor had seen the proposed amendment, and received confirmation this was correct. MR. WILLIAM BOBRICK, a private citizen from Anchorage, underscored the need for this legislation. He said he was the former chair of the board of the Alaska State Council on Domestic Violence and Sexual Assault, and testified this was a common sense approach of rewarding good behavior rather than bad behavior. The government should not be rewarding parents who beat up their spouse with either joint or sole custody. He said that kids figure out if one spouse beats up the other and still gets custody, the message is "that must be o.k." so that behavior continues. CHAIR DYSON asked for Mr. Hilyard's response to Ms. Blough's amendment. MR. HILYARD said Ms. Blough's concerns are more broadly applicable to the state's child custody laws, whereas this bill addresses the specific situation of temporary custody when there's been a history or pattern of domestic violence in the relationship. He did not express support of the amendment at this time because of wanting to review it with the attorney general's office and the court system. He said from a general legal perspective, Mr. Bailey thought it might not be most appropriate to place the amendment in HB 385. CHAIR DYSON recommended that the sponsor and the attorney general's office research this, and amend it in Senate Judiciary, if necessary. SENATOR GUESS commented she had researched how "sexual assault" fits in with "domestic violence." She suggested review of the definition of "household member" under the domestic violence statute to ensure that reference to "a child" was similar to the domestic violence statute regarding "household member." MR. HILYARD asked if she was talking about the broader "a child" versus "the child." SENATOR GUESS responded that yes, she agreed with Mr. Bailey on his definition of "a child," but was not sure, given the definition of domestic violence if his definition of "a child" fits. MR. HILYARD said he would be happy to research this and let Senator Guess know by the end of the day. SENATOR GUESS moved to report CSHB 385 (JUD), version W, out of committee with individual recommendations and the attached zero fiscal note. CHAIR DYSON asked if there was any objection. There being none, it was so ordered.