CSHB 385(JUD)-AWARDING CHILD CUSTODY  REPRESENTATIVE LESIL McGUIRE, sponsor of HB 385, gave the following explanation of the measure. Just to let you know that whenever the words 'domestic violence' come into play, I think it raises everybody's awareness and we get on notice and we want to figure out what the bill says. In the House, it passed out just fine through all of the committees and through the floor but leading into the floor vote itself, there were a couple of members that came to me, similar to it sounds like what is going on here where they read the title, looked at it, had an understanding of it that was inaccurate, and once I was able to explain what the bill did, it passed with flying colors. So, let me try to walk you through how this plays out. Obviously, the issue of awarding child custody is a very sensitive issue and it's something that most of us have had a friend or a relative or a constituent that has dealt with a child custody situation that hasn't gone well or we've at least heard about one where the perception has been that a judge unfairly gave sole custody to one or split joint custody when they shouldn't have. Mr. Chairman, as you well know, similar to a divorce, a child custody situation, when parties come away, I think, everybody feels like they lost most of the time. So the judge is in an interesting position in awarding joint custody. This bill deals with the factors that should be considered when awarding joint custody. Obviously, Mr. Chairman, I support and I think most people do support the notion that when the unfortunate situation occurs where a family can't stay united, that to the very best of everybody's ability, the mother and the father ought to split the custody of that child and have the opportunity for the child, despite the fact that they don't have their nuclear family together, to have an opportunity to have a father and a mother growing up. So that is at the heart of and the root of my philosophy and what I believe in and so this bill is not any attempt to go against that philosophy. What this bill does is, Mr. Chairman, there are 23 other states that have adopted friendly parent legislation. This was brought to me by a constituent. She's the president of the PTA in my district, Paige Hopson, and she should be on the line, and her attorney Alan Bailey, who is a family law attorney. I think he's traveling today and can't be on the line but has testified in the past and I can summarize his interest. He's a family law practitioner who works in this area and worked with Paige on this bill. What's been happening in cases where there is domestic violence, and when I'm talking about domestic violence I want to make sure that the members understand - and we have one amendment today that should be before you that even clarifies this more severely, is that we're talking about a case where they have caused serious bodily injury - this is not an allegation, this is not a pushing or shoving, this is not a you yelled at me and that made me feel bad. This is a serious bodily injury and it is a history. You have to have a history of perpetuating it and once you see the amendment today it will make it clear once again that in a second part of the bill, page 3, line 31, we want to repeat the words 'a history of perpetuating' so that throughout, what a judge is looking for, Mr. Chairman, is serious bodily injury, a history of perpetuating domestic violence. And in those cases, prior to friendly parent legislation throughout the nation, and this is an unbelievable thing but stay with me, sometimes the person who has been a victim of domestic violence is not awarded partial custody. How this happens is that under the existing statutes in our state and in others, if the members will look to ... page 2, line 22, everything in all caps and parentheses will show you the way the statute used to read. It used to say as one of the factors for consideration about shared custody, we want to know which parent is more likely to encourage frequent and continuing contact with the other parent. That's one thing. Then if members would look to page 3, lines 17 through 20, the law used to say 'the desire and ability of each parent to allow an open and loving and frequent relationship between the child and the other parent.' Mr. Chairman, if you have been the victim of domestic violence, if you have been the recipient of serious bodily injury on a repetitive, perpetual basis, it is unlikely that you would want to have a close and loving contact with that person that has been your batterer. That is the way that it plays out, and so the child ends up sort of in between the two and we don't want that to happen. But in awarding custody, what has happened, and there are statistics nationwide that in roughly 70 percent of those cases, it is the batterer that gets the custody of the child because they're the ones that say hey, I will encourage this close and loving contact, I don't have any problem having frequent contact with the other parent - no big deal to me, everything's fine. The person who has been battered is saying I am uncomfortable making that commitment to have close loving contact with the other parent and they end up losing the ability to have custody. So what we're trying to do in this bill is to level the playing field and to simply say that, first of all, that will be one factor that the judge is still considering so it is still important - if you look on page 2 - that you're looking at the needs of the child, the stability of the home environment, the education, the advantage of keeping the child in the community and all these other things, but we're also saying that if there has been this serious bodily injury and this history of perpetuating domestic violence, that there will be a presumption that goes in favor of the person that has been abused. Now I might add, Mr. Chairman, I worked very closely with Max Gruenberg on this, and Les Gara, who are the minority members in my committee and Max practices in this area. The only reason I bring it up is that there are always places where you can make a bill stronger and sort of weaker. I want to call members' attention to the presumption itself on page 4 - we say that the presumption itself can be overcome by a preponderance of the evidence. A preponderance of the evidence is the lowest possible standard.... There are other states that have clear and convincing evidence, which is the higher standard. We have the preponderance of the evidence standard, which is 51 percent. And what we're saying is hey, if there's evidence of serious bodily injury and a history of perpetuating it, we're not going to let this be used against the person who was battered and the presumption can be overcome, though, again by a preponderance of the evidence and all you have to do is successfully complete an intervention program for batterers. That's all you have to do. We're not saying that you will not get custody of your child, as some people have misunderstood this bill. We are not saying that because you have been involved in domestic violence you'll never be a father or a mother and never have the right to see your child. So I just want to point those things out. Once the bill was explained to people on the floor, it had wide bipartisan support on the floor and passed the House amended. I'd be happy to answer any questions that people have and sorry if I made it even more confusing. SENATOR OGAN said he likes the fact that the bill allows for an intervention program for batterers because they are generally left untreated. He noted that the language on page 4, lines 9-10 says the parent does not engage in substance abuse but often "birds of a feather flock together" and questioned what the court would do if both parents engage in substance abuse. REPRESENTATIVE McGUIRE remarked that not all 23 states' laws have that intervention language and she believes that is very important. She said she does not want this bill to be used to permanently prevent a parent from having a relationship with his/her child. Second, she pointed out that a provision on page 4, line 15, addresses the sad situation where both parents have a history of perpetuating domestic violence. The first option, in that case, is to award sole legal and physical custody to the parent who is less likely to continue to perpetrate domestic violence and require that parent to complete a treatment program. The second option is to award sole legal or physical custody, or both, to a third person. She said what is most important about this bill is that it gives the court many tools and discretion. She added that the first option might not be palatable to some people, but that is for judicial discretion and there must be a nod toward keeping a child with his or her natural family, when safe. SENATOR OGAN maintained that a parent with a mental illness can be a good parent. REPRESENTATIVE McGUIRE explained that to get to the section Senator Ogan is referring to, the court must determine serious bodily injury and a history of perpetrating violence. CHAIR SEEKINS added that is assuming that a person is still in a custody battle and the court must make the decision. REPRESENTATIVE McGUIRE agreed and said the mental illness would only come into play if it affects that person's parenting ability. CHAIR SEEKINS moved to adopt Amendment 1, which reads as follows: A M E N D M E N T 1 (Page 3, Line 31 - Page 4, Line 1) DELETE "committed an act of" INSERT "a history of perpetrating" Rationale: In (h) below (Page 4, lines 4-7) "A history of perpetrating domestic violence" is given specific meaning. This amendment would make the language consistent in the two sections. SENATOR FRENCH objected for the purpose of discussion. CHAIR SEEKINS felt that Amendment 1 makes subsection (g) conform with the remainder of the section. REPRESENTATIVE McGUIRE said that is exactly correct. She said the intent is to make sure that when this process is being abused, there is a documented history of it. It is not to apply to a single allegation. CHAIR SEEKINS said it almost seems predictable in certain contested divorce cases that both parties rush to file a [domestic violence and/or sexual abuse of a minor] complaint when there is no basis in fact for the allegation. However, one complaint based on a documented history of domestic violence could lead to this conclusion. REPRESENTATIVE McGUIRE agreed and clarified that she meant that the two be read together. She explained: So, we've always meant for it to be more than an act but when we looked back at it we realized it wasn't consistent in both parts so it's just to reaffirm that basic public policy that we had before and it's just what you said. CHAIR SEEKINS said the committee has heard testimony that complaints of domestic violence can be used as a weapon and not for the best interests of the child. REPRESENTATIVE McGUIRE clarified: So Mr. Chairman, what we're doing now is we're saying that - and these are difficult subjects to talk about because there will be some people that would say to you yea, the incidents of false complaints of domestic violence are rare and so on, but I think we all understand what we're talking about, which is that it can be used that way. What this bill is doing now is it is still asking that the best interest of the child be considered. It's also asking that the court consider a variety of other factors but it's simply saying now that the fact that someone has been a recipient of serious bodily injury, that there's a history of domestic violence, it is a thing that we want the courts to consider and.... CHAIR SEEKINS interjected, "All of which is meant to try to serve the best interests of the child." REPRESENTATIVE McGUIRE said that is the point. She noted the victim of serious bodily injury would not want that abuse to be used against him or her in a custody battle but the root of the issue is what is best for the child. She pointed out the evidence is overwhelming that in a household where domestic violence occurred, the child is likely to have been abused as well. About 10 years ago, the legislature acknowledged the fact that witnessing domestic violence has psychological implications for children. She noted the judge would have to consider a list of factors and if there is a history of domestic violence and serious bodily injury, there is the presumption that can be overcome by a preponderance of the evidence. CHAIR SEEKINS noted that a loving parent may not necessarily be a good parent and asked how to balance other negative habits or conditions that may be present. REPRESENTATIVE McGUIRE said the original language - the desire of each parent to provide a "loving, frequent relationship between the child" was an odd standard. She tried to put a more legally defensible and neutral standard into the standard so used "the willingness and ability of each parent to facilitate and encourage a close and continuing relationship...." She pointed to the language on line 20 and said that gets to the root of Chair Seekins' concern, that being that a history of domestic violence will endanger the health or safety of the child. However, she wants to keep that as one of the factors for the court to determine because it is for the benefit of the child. SENATOR FRENCH thought the bill strikes a good balance between the needs of both parties regarding child custody issues. He said in his experience, he has not found that most people use the filing of a domestic violence complaint as a weapon in custody battles. He finds legal professionals, for the most part, to be an ethical bunch. He then referred to the phrase "serious bodily injury" on page 4 and asked why she chose that phrase rather than "serious physical injury" and whether they are the same in her mind. CHAIR SEEKINS asked that Amendment 1 be addressed first. SENATOR FRENCH withdrew his objection to the adoption of Amendment 1, therefore it was adopted. REPRESENTATIVE McGUIRE said Representative Gruenberg suggested that phrase and that she would be amenable to changing the phrase to "serious physical injury". She meant the two to be the same. She then suggested including the definition of that phrase to improve the bill. SENATOR FRENCH noted that because the phrase "serious physical injury" has been used in the criminal statutes for decades, he would move to change the word "bodily" on line 6 of page 4 to "physical" [Amendment 2]. CHAIR SEEKINS announced that without objection, Amendment 2 was adopted. MS. PAIGE HODSIN, representing herself, told members she could provide them with the results of a 1988 American Bar Association study of 12 states in which 9,000 custody cases were reviewed. Less than 2 percent of those cases involved allegations of sexual abuse so the false allegation concern is low incidence. She then explained that she is a divorced single mother of two children and is a court-appointed special advocate for abused and neglected children, PTA president and a domestic violence survivor. She was in a verbally and physically abusive marriage for 11 years; most of the abuse occurred in front of her children, which is what the bill addresses. As her daughter grew older, she began to see the impact of witnessing abuse on her more clearly. As her daughter grew older, the father became abusive of her as well and she felt it was her responsibility to protect her children's well being and serve as an appropriate role model. Her ex-husband had threatened to use whatever action necessary to prove her to be an unfit mother and take custody of the children, who she would never see again. During the custody battle, she found that her role had been turned upside down. Her common sense told her that she was responsible for getting out of the marriage to protect the children, yet she was pressured to not raise those concerns during the custody battle. Some of the statutes resulted in equal blame for the violence. Her children's fears about their father's abuse were pathologized and the court strongly implied that if she did not accept a shared physical custody arrangement, the court would give full custody to the father. MS. HODSIN said as time went on, she found the toll on her daughter of unsupervised visitation with the father became enormous. She would scream, kick and cry when taken from her home and had trouble at school. Her daughter reached out to many trusted adults yet the court failed to respond. Her son, a toddler, would be returned dehydrated and unclean, and once with a black eye. She went through two full custody trials and five years of litigation. She now has full legal and physical custody of her children but her ex-husband still has unsupervised visitation rights. Ultimately, she found her case to be representative of systemic failure in the court system to protect domestic violence victims and their children. She found women and children all over the country with similar experiences and she found an alarming number of abusive parents being awarded full custody of their children. She said HB 385 is the result of almost three years of researching and networking to find the best statutes in the country and it is strongly supported by many organizations involved with the protection of children. It brings Alaska's child custody statutes into line with what 11 states are doing. Congress and the National Council of Juvenile Court Justices recommend it. It also brings Alaska statute into line with voluminous research on the impact of domestic violence on children. She thanked members for considering this legislation. MS. CHRISTINE PATE, Alaska Network on Domestic Violence and Sexual Assault, stated support for CSHB 385(JUD)am. CHAIR SEEKINS announced that public testimony was closed. SENATOR OGAN moved SCS CSHB 385(JUD) from committee with individual recommendations and its attached fiscal notes. CHAIR SEEKINS announced that without objection, the motion carried. He then announced his intention to begin Wednesday's meeting promptly at 8:00 a.m. and adjourned the meeting at 10:01 a.m.