HOUSE HEALTH, EDUCATION AND SOCIAL SERVICES STANDING COMMITTEE March 11, 1994 3:00 p.m. MEMBERS PRESENT Rep. Cynthia Toohey, Co-Chair Rep. Con Bunde, Co-Chair Rep. Gary Davis, Vice Chair Rep. Al Vezey Rep. Pete Kott Rep. Harley Olberg Rep. Bettye Davis Rep. Irene Nicholia MEMBERS ABSENT Rep. Tom Brice (Excused) OTHER LEGISLATORS PRESENT Rep. Cliff Davidson COMMITTEE CALENDAR *HB 422: "An Act relating to custody and visitation rights." HEARD AND HELD (* First public hearing.) WITNESS REGISTER CLAIRE STEFFENS, Attorney P.O. Box 101847 Anchorage, Alaska 99510 Phone: (907) 276-5846 Position Statement: Testified in support of HB 422 (spoke via teleconference) TERRI LAUTERBACH, Legislative Legal Counsel Division of Legal Services Legislative Affairs Agency 130 Seward St. Juneau, Alaska 99801 Phone: (907) 465-2450 Position Statement: Answered questions on the CS for HB 422 RUSSEL BLOME P.O. Box 231836 Anchorage, Alaska 99523 Phone: (907) 349-4053 Position Statement: Testified in support of HB 422 (spoke via teleconference) PATRICIA NEAL P.O. Box 2059 Wrangell, Alaska 99929 Phone: (907) 874-2529 Position Statement: Testified in support of HB 422 (spoke via teleconference) WADE WAHRENBROCK P.O. Box 628 Soldotna, Alaska 99669 Phone: (907) 262-9033 Position Statement: Testified in support of HB 422 (spoke via teleconference) TIN MAROK HC 2 Box 707 Soldotna, Alaska 99669 Phone: (907) 262-7873 Position Statement: Testified in support of HB 422 (spoke via teleconference) GUSTAVO ACEVEDO P.O. Box 1931 Bethel, Alaska 99559 Phone: (907) 543-3462 Position Statement: Testified in support of HB 422 (spoke via teleconference) TRACY DRISKILL, Founder Family Affirmative Action P.O. Box 875731 Wasilla, Alaska 99687 Phone: (907) 373-1440 Position Statement: Testified in support of HB 422 (spoke via teleconference) TAMMY STEELE P.O. Box 870535 Wasilla, Alaska 99687 Phone: (907) 373-3261 Position Statement: Testified in support of HB 422 (spoke via teleconference) JIM COLVER P.O. Box 427 Palmer, Alaska 99645 Phone: (907) 745-8474 Position Statement: Testified in support of HB 422 (spoke via teleconference) STEPHANIE McBRIDE 3011 Admiralty Bay Dr. Anchorage, Alaska 99515 Phone: (907) 349-5626 Position Statement: Testified in support of HB 422 (spoke via offnet) JIM ARNESON, President Alaska Family Support Group P.O. Box 111691 Anchorage, Alaska 99511-1691 Phone: (907) 344-7707 Position Statement: Testified in support of HB 422 (spoke via teleconference) JERRY CHRISTENSEN HC 30 Box 5348 Wasilla, Alaska 99654 Phone: (907) 376-7901 Position Statement: Testified in support of HB 422 (spoke via teleconference) GARY MAXWELL, Statewide Coordinator Children's Rights Council of Alaska P.O. Box 92083 Anchorage, Alaska 99509 Phone: (907) 274-7358 Position Statement: Testified in support of HB 422 (spoke via teleconference) DIANNA ALCANTRA 17421 Teklaniker Eagle River, Alaska 99577 Phone: (907) 696-4446 Position Statement: Testified in support of HB 422 (spoke via teleconference) KENNETH KIRK, Attorney 900 W. 5th Ave., #730 Anchorage, Alaska 99501 Phone: (907) 279-1659 Position Statement: Testified in support of HB 422 (spoke via teleconference) KERI BASLER 5800 College Dr. Anchorage, Alaska 99504 Phone: (907) 338-1824 Position Statement: Testified in support of HB 422 (spoke via teleconference) JAYNE ANDREEN, Executive Director Council on Domestic Violence and Sexual Assault P.O. Box 111200 Juneau, Alaska 99811-1200 Phone: (907) 465-4356 Position Statement: Testified in opposition to HB 422 SHERRIE GOLL, Lobbyist Alaska Women's Lobby P.O. Box 22156 Juneau, Alaska 99802 Phone: (907) 463-6744 Position statement: Testified in opposition to HB 422 PREVIOUS ACTION BILL: HB 422 SHORT TITLE: CHILD CUSTODY AND VISITATION RIGHTS SPONSOR(S): REPRESENTATIVE(S) BUNDE JRN-DATE JRN-PG ACTION 01/31/94 2206 (H) READ THE FIRST TIME/REFERRAL(S) 01/31/94 2206 (H) HES, JUDICIARY, FINANCE 03/11/94 (H) HES AT 03:00 PM CAPITOL 106 ACTION NARRATIVE TAPE 94-44, SIDE A Number 000 CHAIR TOOHEY called the meeting to order at 3:05 p.m., noted members present and announced the calendar. She brought HB 422 to the table. HB 422 - CHILD CUSTODY AND VISITATION RIGHTS Number 050 REP. CON BUNDE, Prime Sponsor of HB 422, stated that before the committee was a committee substitute (CS) for HB 422 and asked that the CS be moved. REP. G. DAVIS made the motion to adopt the CS for HB 422. CHAIR TOOHEY, hearing no objections, stated that the CS was so moved. REP. BUNDE addressed the CS. He stated that one of the greatest consequences of the rising divorce rate is the child's lack of relationship with two parents. He also indicated that children from broken homes tend to engage in sex at an earlier age and pose a greater risk to themselves for exposure to the AIDS virus. He then asserted that children of divorced parents have a right to maintain a relationship with both parents. REP. BUNDE said the amount of child visitation ordered by a court is of great concern to many parents and is directly related to the amount of child support a noncustodial parent will have to pay. However, he said the bill does not provide opportunity to lower child support payments. It provides the opportunity for noncustodial parents to gain access to their children and to have an ongoing relationship with them. REP. BUNDE maintained that the legislation addresses the problem of children being used as pawns in domestic disputes between the parents. He said the proposal would provide minimum visitation guidelines for parents who do not have shared custody or joint custody of their children. Present statutes do not include any type of minimum visitation guidelines, resulting in the children being placed in the center of emotional arguments. REP. BUNDE indicated that the CS allows for flexibility for visitation times and the ability of a parent to enforce court ordered visitation. He specified that both versions of the bill include a provision for notice of relocation, which requires that the court and the noncustodial parent be notified 60 days in advance of the custodial parent's move. REP. BUNDE further stated that the proposal addresses intentional noncompliance, which is also defined as custodial interference. He explained that if a parent is found guilty of custodial interference, they would incur monetary damages, and the noncustodial parent would be awarded at least twice the amount of visitation time that had been denied because of custodial interference. REP. BUNDE asserted that passage of the legislation would be a step forward for children and indicated it is the parents who are divorced, not the children. The intent of the legislation is to preclude children from being used as negotiating tools during and after a divorce. He maintained that the children deserve the attention of both parents in a consistent manner and urged the support of the committee. He then indicated that he would like to hear testimony via teleconference and that he would be happy to answer any questions. (Chair Toohey stated for the record that Rep. Olberg arrived at 3:09 p.m.) CHAIR TOOHEY asked for teleconference testimony from Anchorage. Number 226 CLAIRE STEFFENS, Attorney, testified via teleconference in support of HB 422. She stated that she supported the legislation, even though it would decrease court case loads by half and put divorce attorneys out on the street. She said, as a result of the proposal, children will no longer be used as weapons between the parents. She maintained that the need for the legislation is unquestioned and it provides for good enforcement. She also stated that the bill would not affect the child support program, but would maintain the distinction between child support and access of the child to the noncustodial parent. She felt the legislation provides for enforcement pertaining to denial of visitation and that the parent who is being denied visitation has a remedy to the problem by way of the courts. Society needs to take more stringent steps in supporting the child's need to have access to both parents. She suggested that society is suffering the malaise of children who in some form have been abandoned by one or both parents in a divorce situation. MS. STEFFENS supported the concept of a 60 day notice of relocation. She said it would be instrumental in protecting custodial parents from "kidnapping" their children. MS. STEFFENS further stated that she did have one problem with the bill as written. Number 365 CHAIR TOOHEY asked Ms. Steffens if she was reading from the work draft. MS. STEFFENS said yes. She indicated that in Section 6 the language seemed to provide for an increase of at least 25% in visitation time. She suggested that perhaps a period be put after the word "time" on line 12 and delete the rest of the sentence. She explained that the portion of the sentence that should be deleted is unclear. She asserted that the line could be interpreted to mean that only people who have 4.5% visitation time would be subject to having the court review their visitation orders. She said that no one has that little visitation time. She also said that the legislation does not apply to those who have no visitation time. She said by leaving off that portion of the sentence, the provision would apply to anyone who has at least 29% visitation time. It would make the minimum standard applicable to all people. Number 434 REP. BUNDE reiterated that Ms. Steffens' recommendation would be to delete the phrase "of at least 25 percent and the modification is in the best interests of the child." He asked if she would respond positively to an increase in visitation time that is in the best interest of the child. MS. STEFFENS indicated that it is not necessary because the court is required to make the visitation order in the best interest of the child anyway. Number 460 CHAIR TOOHEY pointed out to the committee that Terry Lauterbach, the drafter of the legislation, was available for questions. Number 461 TERRY LAUTERBACH, Legislative Counsel, Division of Legal Services, Legislative Affairs Agency, testified in Juneau on HB 422. She stated in regards to Ms. Steffens' issue that the section would only apply to people with less than 5% custody, she felt it is not how the language reads, it would be whether the increase would be 25%. It would apply to anyone with less than 25% now. She said, "The 25% that they have plus another 25% is still going to keep them under 30 (percent). So, anyone who now has visitation rights of less than 25% would benefit or be able to use this law to ask for modification." She further stated that she has no objection, if it's the committee's desire to make a change that would allow any sufficient increase. MS. LAUTERBACH stated that the phrase, "...modification is in the best interests of the child...," is not duplicative as indicated by Ms. Steffens. She said that page 5, line 10, states that this constitutes a change requiring modification. She also added that even though there may be a court ruling which says that the best interest of the child must be followed, it doesn't mean that there couldn't be a lack of clarity. She felt it was safer to have the two statements within the one act. She stated that she had no legal objection if the phrase "of at least 25 percent" were to be taken out, but recommended that the language remain as written. Number 532 CHAIR TOOHEY asked Ms. Lauterbach, if the percentage goes above 30, would the rate of child support change? MS. LAUTERBACH indicated that the rate may or may not change, and pointed out that the calculations are different for shared custody. She also stated that there are many different factors involved in child support, and a person could end up paying the same amount, even though that person is above 30%. She explained that it happens in shared custody situations where child support is initially figured as if the person has full custody and then is multiplied by 1.5, because it's recognized that taking care of two households costs more than taking care of one. She said, "...that often can get you right back up to what you would pay if you had no custody at all. So, it's not always a change in child support, especially if there's a huge disparity in the income of the two parents." Number 568 CHAIR TOOHEY asked for further testimony from Anchorage. Number 571 RUSSEL BLOME, a noncustodial father, testified via teleconference from Anchorage in support of HB 422. He stated that the proposed legislation will benefit both children and parents alike. He said that by establishing visitation guidelines, children will have access to both parents, which will contribute to the child's well being. He also said that it is well documented that parents with visitation pay support in full and on time up to 90% of the time. He indicated that Civil Rule 90.3 requires payment of child support and that the passage of HB 422 would require certain levels of visitation, which will provide a balance of support and visitation. MR. BLOME further stated that the legislation will also allow more uniform visitation. He said both parents will be able to plan time more effectively and bring more order into their lives. He also felt that a uniform award of visitation would likely reduce appeals of arbitrary awards, subsequently reducing the great burden on the court system and the amount of legal fees for all those involved. MR. BLOME asserted that the failure to pass HB 422 will have serious consequences, citing that parents without visitation pay child support less than 40% of the time and that a child endures unnecessary pain and suffering from not being allowed to have visitation with one parent. He felt that the children are the victims being held hostage by the custodial parent who is depriving them of the emotional security of the two parent family. Number 637 CHAIR TOOHEY indicated that Rep. Cliff Davidson was present and asked him to join the committee. She then asked for further teleconference testimony. Number 645 PATRICIA NEAL, a custodial parent married to a noncustodial father, testified via teleconference in support of HB 422. She stated that her husband is back in court for the second time in eight months because court orders do not work. She said her concern is how can divorced parents be assured that the legislation will be enforced by the courts. She indicated that currently there is a law that stipulates a $200 fine for denial of visitation, yet it is not enforced. She further stated that she strongly supports the 60 day notice of relocation and related to the committee her husband's experience with his ex-wife who left the state with his nine year old daughter after he filed a change in custody. She said the courts did nothing. She asserted that the legislation is not about child support, it is about the rights of the child no matter which parent has custody. Ms. Neal said equality would be brought to the system. Number 711 CHAIR TOOHEY asked for further testimony. Number 712 WADE WAHRENBROCK, a noncustodial parent, testified via teleconference in support of HB 422. He stated that the proposed legislation will offer balance to children. He then referred to the CS, page 3, line 7, and stated that the provision addresses Christmas vacation. He said the section is nonnegotiable and that geographic location could be a problem when trying to split up the Christmas holiday. He asked the committee to reconsider the provision. Number 752 REP. BUNDE asked Mr. Wahrenbrock to read further down page 3, line 20, and indicated that the court may vary the requirements under the section in the consideration of age, circumstances, and needs of the child. He pointed out that there is flexibility within the legislation. MR. WAHRENBROCK asked, if his ex-spouse decided to relocate to another area, would the court have to review the case each time she relocated? REP. BUNDE deferred to Ms. Lauterbach. MS. LAUTERBACH indicated that unrelated to the proposed legislation there is always the option to modify visitation or custody when there is a material change in circumstance. She said it was her understanding that movement of a child out-of-state or a very long distance would constitute some type of modification. MR. WAHRENBROCK said he hoped the issue could be addressed between the parents instead of building the guidelines into statute for them. Number 789 TOM MAROK, a noncustodial parent, testified via teleconference in support of HB 422. He stated that he would like to see the Christmas holiday be divided on Christmas Eve and not the morning of Christmas. He also referred to the second paragraph and second sentence of the sponsor statement that reads, "The amount of visitation ordered by the court is directly related to the amount of child support a noncustodial parent will have to pay." He asked for further clarification. Number 818 REP. BUNDE explained that if a person has joint custody, less child support is paid as opposed to having only visitation rights at 5%. He indicated that the longer a child is with a noncustodial parent, the less child support the visiting parent must pay. MS. LAUTERBACH stated that visitation is a term applied to what the parent who is not the custodial parent has. If visitation goes above 30%, both parents are considered to be custodians and neither one has visitation rights. She further indicated that the reference made in the sponsor statement saying that the amount of visitation is directly related to child support is not exactly accurate. She said there is no difference between the child support paid for 5% visitation and 29% visitation. MR. MAROK agreed and felt the statement should be clearer. REP. BUNDE said that the term more accurately should be custody; the amount of custody versus visitation has an impact on the amount of child support. MS. LAUTERBACH said, "And even then, the impact is... there's a bright line at 30% where the calculations change. So, it's only if you're above or below 30% that the calculations will be different." MR. MAROK asked if there would be a noncustodial parent if the percentage is above 30. MS. LAUTERBACH explained that both parents would be considered custodians. One is called an obligor because they pay the child support, and the other parent is called the custodian, but it is an inaccurate use of terms because there is no visitation rights. MR. MAROK thanked Ms. Lauterbach for her clarifications. Number 862 CHAIR TOOHEY asked for further testimony. Number 863 GUSTAVO ACEVEDO, a noncustodial parent, testified via teleconference in support of HB 422. He stated that he has had many problems trying to visit his daughter and indicated that over the four years since he has been divorced, he has only seen his daughter "for about three or four months." He said his ex-wife is denying his visitation for no reason. He said he had to fly to Anchorage to find a lawyer to handle his case. He said he has had no visitation with his daughter in over three years. He indicated that his ex-wife has given away two other of her children from two different fathers and he fears she will give away his daughter, too. He stated that he and his ex-wife do have a visitation agreement, but she continually denies him visitation and blames the situation on him. Number 948 TRACY DRISKILL, Founder, Family Affirmative Action, testified via teleconference in support of HB 422. She stated that she is the custodial parent of two children and a second wife to a noncustodial father of one. She explained that her children from her first marriage have very liberal access and phone contact with their natural father and indicated that the children need "daddy in their life just as much as they need mommy." She further explained that her children are leaders in their school, have no problems interacting with others, and felt they directly benefit from spending time with both their parents, "hassle free." She then explained that in the past eight years her husband has spent approximately $60,000 so he could maintain a relationship with his daughter. He has been to court four different times due to denial of visitation. She said the first time the judge ordered the parents to sit down and work out an equitable schedule. She explained that the order did not work as the ex-wife felt that visitation for two or three days per month was sufficient. She said each time her husband went to court his child support was increased and he was held responsible for all or part of his ex-wife's attorneys fees. He then would receive an increase in visitation, but each time there was successive denial of court ordered visitation. Ms. Driskill said no penalties were imposed, only "just a mere slap on the hand and told not to interfere with visitation." She indicated that her husband's daughter is nine years old and wets her pants and bed and is not involved in any activities because she has no drive. She further indicated that the child is below average in school and has disciplinary problems both in and out of school. MS. DRISKILL stated that up to 70% of grown children who commit crimes come from broken families and many have stated in counselling that they are angry with the system. She said there is strong evidence to prove that there is a great lack of noncustodial influence in children's lives after divorce. MS. DRISKILL stated that it is a known fact that if custodial parents spend more time with the children more money will be spent. She felt that anything less than 29.5% minimum visitation is a crime against the children. TAPE 94-44, SIDE B Number 000 CHAIR TOOHEY asked for further testimony and requested that witnesses keep their testimony under three minutes. Number 002 TAMMY STEELE, a custodial parent of two children and wife of a noncustodial parent, testified via teleconference in support of HB 422. She stated that her husband has undergone constant interference with his visitation and without passage of the bill, "we have no place to go." She said that the proposal offers guidelines that would help her husband gain what is rightfully his. She indicated that when the custodial mother started interfering with her husband's visitation, the child's grades went from A's to D's or her work was incomplete. She indicated that the child's whole attitude changes and is very functional when there is consistent visitation. She felt the child would end up being nonfunctional in society if nothing is done to ensure consistent visitation. She urged the passage of HB 422. Number 118 CHAIR TOOHEY thanked Ms. Steele for her testimony and continued on with testimony from Mat-Su. Number 120 JIM COLVER testified via teleconference in support of HB 422. He stated that the bill is a children's rights bill, guaranteeing a child's access to both parents. It would allow for the minimum amount of court ordered visitation with a noncustodial parent, regardless of the outcome of the divorce. He maintained that society should take a stance that would advocate the participation of both parents in a continuing relationship with their children. He stated that often children are the victims of the high divorce rate. MR. COLVER further stated that a book by Judith Walderstein, "Second Chances: Men, Women and Children, a Decade after Divorce," chronicles a ten year study of 16 divorced families. He read excerpts from the book that urges that children have real fathers to encourage them in particular times of life and that the study shows that good father\child relationships are critically important to the psychological well being and the self-esteem of children of divorce. He indicated that the father's consistent role is beneficial to the child's emotional life, self-esteem, self- image. CHAIR TOOHEY reminded Mr. Colver that the legislation is gender neutral. MR. COLVER agreed and said he hoped that the committee would obtain copies of the aforementioned book. He felt that many societal problems can be attributed to the breakdown of the family. He asserted that the bill would result in lower court costs and attorneys fees, would reduce visitation litigation, and would not result in lower child support payments. He further indicated that in Section 2 there needed to be a "rebuttal presumptuous" within 29% so the courts would not wander away from the guidelines. He also recommended that the title be "tightened up" so it does not become a vehicle for anyone in other committees to change the concept. Number 246 STEPHANIE McBRIDE, the wife of a noncustodial father, testified via offnet in support of HB 422. She stated that her husband has been denied visitation time and time again. She said she and her husband have two children between them and she would not interfere with visitation. She explained that her children are happy and self-confident because they have a father in their life. She indicated that her husband's daughter has a lack of self-confidence and problems in school. She said she and her husband worry about "where her head will be at as far as responsibility for herself and her body." She indicated that the attorney fees involved are astronomical. She supported the basic minimum guidelines because she felt legal fees would be reduced tremendously and that not every judge has an inside view of how the relationships are between the parents and children. Number 305 CHAIR TOOHEY reminded everyone that Ms. Steffens said she would be out of a job if the bill passes. She then asked for further testimony. Number 307 JIM ARNESON, President, Alaska Family Support Group, testified via teleconference in support of HB 422. He stated that the legislation relates to guidelines for parental involvement and guaranteeing arrangements for children after a divorce or when parents live apart. He said the legislation would provide the remedy to parental interference. He asserted that parental support is just as important as financial support. He said it is estimated that over 10,000 children in Alaska are denied access to both of their parents each year. Mr. Arneson said the rights of children to enjoy a relationship with both their parents is paramount to their all around well-being. She also pointed out the relationship of those people who are in prison and the amount who come from broken homes. He stated the legislation would go far in promoting responsible parenting of children after divorce. He said society should be willing to shoulder the burden if it chooses to do nothing to prevent children from being denied access to both parents. He urged the support of the committee. Number 490 JERRY CHRISTENSEN, a noncustodial parent, testified via teleconference in support of HB 422. He stated he has endured a lot of turmoil and bitterness since his divorce five years ago, which has resulted in denied visitation. He indicated that for the last three years he has been unsure of whether he would be able to see his son from one week to the next. He said it is obvious in his case that a decision cannot be worked out, and the proposed legislation could provide guidelines to help resolve his situation. He further indicated that children have no active part in the process and the proposal would serve the needs of the children. He related scenarios where he has gone to the designated meeting place to pick up his son, and the mother and son never showed up or arrived two hours late. He urged the committee to support HB 422. Number 556 GARY MAXWELL, Statewide Coordinator, Children's Rights Council of Alaska, testified via teleconference in support of HB 422. He stated that he works for a law firm as a paralegal and they mainly work with denied visitation. He suggested that there perhaps would be two major objections to the mandatory visitation guidelines. First, he stated that the mandatory visitation is inflexible and indicated that the courts always recognize that visitation schedules need to be flexible both for custodial and noncustodial parents, citing that not only can an individual parent's daily activities change, but so can the school activities of the children. Secondly, he said that it could be argued that child support could be affected. He said, "This is a facetious argument that is without merit." He explained that he went through the figures for a sole custody calculation based on the father having net income of $40,000 and the mother netting $20,000 per year and the father getting 28% of visitation. He said the father would end up paying $667.00 per month in child support. Number 607 CHAIR TOOHEY asked Mr. Maxwell if he was reading from the work draft or from the original bill. MR. MAXWELL indicated that he was making reference to the working draft. He further stated that if the same numbers are formulated in a joint custody calculation, where visitation is increased to 34% for the father and 66% for the mother, the child support amount would total $490.00 and the father would have more disposable income to spend when he's exercising his access with his children. He said it was his opinion that the father will inevitably spend that money and more on the children when they are spending more quality time with him. Number 638 MS. LAUTERBACH stated that she was confused by Mr. Maxwell's example because nothing in the CS would allow a parent up to 34% and the minimum visitation awarded is 29.5% MR. MAXWELL replied that he was using a hypothetical example to show the difference between calculations of sole and shared custody. MS. LAUTERBACH said she was unsure as to how the example is relevant to the bill. MR. MAXWELL maintained that it relates to the argument that child support will be drastically affected. CHAIR TOOHEY thanked Mr. Maxwell for his testimony. She then asked for testimony from Dianna Alcantra. Number 667 DIANNA ALCANTRA, a wife to a noncustodial parent, testified via teleconference in support of HB 422. She stated that the 29.5% visitation is too little. She felt the argument that it would interfere with child support is ludicrous and said the money goes to the child not the other parent. She said, "If the custodial parent has a reduction in child support, the noncustodial parent has an increase in which they would spend on the children. I think it's a shame that it was reduced to 29.5% to avoid that." She further indicated that she and her husband have been in the courts since 1990. She said last year a judge had to order the custodial parent to allow her husband's son to play Allstar baseball, and the mother's objection was that the game was during the summer and the husband was receiving a credit for visitation of $35.00 per day for the child. The mother did not want to lose the $35.00. She further explained that visitation has been interrupted and the mother has moved out of the state with her husband's son. She explained that when there are no guidelines set down, it leaves the parents to their own interpretation. She related a situation where the custodial parent thought every other weekend visitation meant for Saturday and Sunday, while the noncustodial parent interpreted it to mean Friday night through Sunday night. She said at least $10,000 has been spent over the last several years arguing over the interpretation of a bad visitation schedule. She said children desperately need the proposed legislation to ensure their rights to access of both parents and to protect them from being used as "bargaining chips" for money. Number 744 CHAIR TOOHEY asked Ms. Lauterbach if the bill, in any way, forces an unwilling parent to visit his or her child. MS. LAUTERBACH said there is no law or court that can force an unwilling parent to visit a child. CHAIR TOOHEY asked for further testimony. Number 748 KENNETH KIRK, Attorney, testified via teleconference in support of HB 422. He stated that while the minimum visitation is the most controversial portion of the bill, there are a number of other very good provisions. He said the biggest problem is the issue of what the standard amount of visitation is. He said it varies from judge to judge and case to case. He indicated that approximately every two years Anchorage has a new judge and one is never sure what recommendation will come from custody investigators. He asserted that a set schedule makes it easier for people to negotiate because they know what the standard is going to be. He indicated that years ago it was the conventional wisdom that a child have one primary parent with occasional visits from the other parent. He said many people are still going by that concept, which has proven to be disastrous. He further stated that the judicial system is "a lousy way to resolve custody battles." He said judges do not always have good insight on cases and often they have limited time or have misjudged somebody. He then recommended that there be an increase to the 29.5% visitation to at least above 30% so that each parent's income would be taken into account when calculating child support. He also suggested that the phrase "...of at least 25 percent... and the modification is in the best interests of the child," should be deleted from page 5, line 12, or that the percentage should be dropped to 10 or 15 percent to make it more reasonable. Number 842 CHAIR TOOHEY asked if there was more testimony on teleconference. She was told there was testimony to be heard from Anchorage. Number 843 KERI BASLER, Member, Alaska Family Support Group, and a custodial parent of two and wife to a noncustodial parent, testified via teleconference in support of HB 422. She stated that she and her husband have a very fair visitation schedule and explained that her own parents used guidelines similar to those within the proposal and she never felt that either parent was unaccessible. She said children across the state need to take the bill into serious consideration to protect their rights of access to both parents. She maintained that the bill would provide those parents who can not find their own solution to visitation or who withhold visitation the necessary guidelines to a solution that would ensure that the best interests of the children are served. She asserted that the intent of HB 422 is to be a guideline. She said the definition of a guideline is a recommendation or principle for determining a course of action. Ms. Basler also indicated that those opposing the bill allege that the supporters have financial motivations. She said, "If you calculate the schedule, it does not meet the 30% threshold required for visitation credit." She asserted that the Alaska Family Support Group's intention is to be fair and to do what's in the best interest of the children. She urged the support of HB 422. Number 891 CHAIR TOOHEY asked if there was further teleconference testimony. There was none. She closed teleconference testimony and asked for testimony in Juneau. Number 892 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, testified in opposition to HB 422. She stated that in cases where family violence exists, a very structured child visitation is important to decreasing future violence toward the victim. She said that the guidelines provided within the bill go too far and do not take into consideration the needs of the parents and children as well. She also said the 60 day relocation was restrictive, especially to Alaskans with changing lifestyles and the fluctuation of seasonal employment. She said the provision is unrealistic. Also, she said when a custodial parent is a victim of violence, whether or not the perpetrator is the father in question or is a new partner, the bill could preclude the woman from seeking shelter for herself and her children. A person cannot plan 60 days in advance if they need to go into a domestic violence shelter; they need to act quickly. She suggested, to avoid jeopardizing the amount of child support, that as a rule single parent families are at the poverty level. She said either the state picks up the liability or the family lives at substandard levels. TAPE 94-45, SIDE A Number 000 REP. BUNDE directed Ms. Andreen's attention to page 3, line 20, and stated that the courts may vary requirements depending on age, circumstance, and needs of the child and also if the courts find that the requirement might cause harm to the child. He felt the provisions addressed Ms. Andreen's concerns. CHAIR TOOHEY asked Sherrie Goll to testify. Number 027 SHERRIE GOLL, Lobbyist, Alaska Women's Lobby, testified in Juneau in opposition to HB 422. She stated that she is more comfortable with the changes in the CS regarding the change in the minimum visitation schedule. She said it would not automatically "bump every case into shared custody, which would of course lower the child support." She asserted that the minimum visitation schedule seemed completely unworkable as written in the original bill and was not in the best interest of the children, citing that the guidelines were so specific to the hour that it seemed the children would have to have their tooth brush packed at every moment. She offered that children shouldn't be made to move place to place, and if the parents did want to engage in that type of schedule, perhaps the parents should have to move in and out of the house. She then noted that some of the prior testimony referred to the provisions within the legislation as guidelines that could be changed, but she indicated that it does say "minimum visitation schedule" and it could be passed into law as the minimum. MS. GOLL also noted that in the CS it requires the court to decrease the percentage of visitation if the visiting parent requests it but not if the custodial parent requests it. She said she did not understand the provision. She then referred to the provision that made it a crime to interfere with visitation. She asked if there was a fiscal note from public safety as to how it will be enforced. She commented that there doesn't seem to be any enforcement of criminal nonsupport of children and further wondered how the state would start enforcing yet another criminal law. She recommended that if the state is going to make a crime of custodial interference, that it also be a crime for a parent to not visit their child when visitation has been awarded. MS. GOLL felt that many parents do not have schedules that fit the minimum visitation schedule, citing those who are seasonal or shift workers. She indicated that the 60 DAY relocation notice is inflexible. She then said that she is sorry that there are so many parents in the state who have been unable to resolve their visitation schedules and feel that the proposed legislation is the answer for them. MS. GOLL further stated that she had received a letter from a divorced parent that related to her the existence of seminars for divorcing parents. She explained that the seminars were taking place in other states and recommended supporting such an idea that would make it either mandatory or at least available to divorcing parents. She felt the seminars might be able to offset future problems regarding visitation. She reemphasized that the involvement of both parents in the children's lives is very important, but she is not sure that the proposed legislation is the way to resolve visitation problems. Number 250 CHAIR TOOHEY referred to page 3, line 20, and stated that judges may vary from the requirements in consideration of age, circumstance, and the needs of the children. MS. GOLL directed the committee's attention to page 3, line 26, and asked for an explanation of why a noncustodial parent would have the opportunity to decrease the amount of visitation time and yet the custodial parent would not. CHAIR TOOHEY asked if the bill addresses those parents who do not want to visit their child. She did not want to have any parents being forced to visit their child. REP. BUNDE indicated that the provision addresses the custodial parent who doesn't want the visiting parent to have access to the child, so they decrease the amount of visitation time. He asserted that nowhere in the proposal does it require a parent to visit the child. Number 313 MS. LAUTERBACH explained to Rep. Toohey that the state cannot force a noncustodial parent to visit their child. She said the bill allows a visiting parent to not be awarded the full 29.5% if they don't want it. They can ask for 10%, but they would not start out at 29.5% if they did not want to. Number 339 CHAIR TOOHEY closed public testimony. REP. BUNDE asked the committee to address the concerns expressed in the form of written testimony from Dane Clark who suggested that there be an option to alternate Christmas vacation every other year like Thanksgiving. (See Attachment 1.) REP. BUNDE indicated that the testimony pertains to the holiday visitation schedule within the bill. He asked the committee to respond to the proposal made by Mr. Clark. MS. LAUTERBACH said if the change being requested was the request of the committee, it would not be a difficult amendment to draft. Number 376 REP. G. DAVIS requested the committee to consider the option. MS. LAUTERBACH referred to prior testimony where witnesses were suggesting that it would be cumbersome to split the Christmas holiday up at 9:00 a.m. Christmas day. She said the intent of the provision is to give one parent Christmas Eve and the other parent Christmas Day. She noted that there is usually two weeks off for children in school and that is why Christmas is treated differently from the Thanksgiving holiday. She said the change would be in the realm of reasonable policy to alternate Christmas vacation in the year that a parent does not have Thanksgiving. Number 411 REP. OLBERG asked if there was enough flexibility in the legislation to include both options. CHAIR TOOHEY referred to Section B, page 3, line 20, and asked how flexible the court can be in that area. She speculated as to whether a parent would have to get permission to be two hours late. She asked if rigid time frames were built into the bill. MS. LAUTERBACH said she did not think subsection B addresses Chair Toohey's question. She said Section B addresses the flexibility of the original visitation schedule. She indicated that Chair Toohey's question pertains to the crime of custodial interference and whether being late two hours would be considered sufficient interference to amount to the crime. CHAIR TOOHEY asked which section of the bill would address the question. MS. LAUTERBACH said Section 1. Number 455 REP. BUNDE explained that the substance of the question falls under the purview of the courts. If a person is two hours late only one time and the other parent tries to press charges, no prosecutor would prosecute. He asserted that if a parent is purposely being manipulative by being chronically late and is causing economical and emotional hardship, then a prosecutor would address the problem accordingly. He said there would still be discretion with the court. MS. LAUTERBACH referred to Section 1, paragraph 2, and indicated that there are three ways to show an intentional interference with visitation rights. She said the key phrase in subsection A is, "...takes, entices, or keeps the child with the intent of denying access to the child..." She maintained that if a parent is two hours late and had no intention to deny access, the conditions of subsection A would not be met. She stated that under subsection B, the parent must have already been found in contempt of court on a previous occasion to satisfy the conditions. She further indicated that subsection C requires a pattern of intentional violation of court orders to allow visitation. She referred to Chair Toohey's question about being two hours late and said it would depend on whether it was intentional denial of access. Number 502 CHAIR TOOHEY asked how a visitation schedule would be changed if a noncustodial parent experiences a shift change in hours at a job and needs to modify the schedule accordingly. She asked how long it would take for the case to be heard in court. MS. LAUTERBACH said she was unsure of how long it would take. She explained that when there is parental agreement it could be fairly expedient, but if there is no parental agreement, it could take years. REP. BUNDE maintained that reasonable people work the schedule out and don't go to court. But, if there is a parent who is adamant that there won't be any change, the case will end up in court. MS. LAUTERBACH speculated that there are many visitation orders in the state that are not being followed to the letter because the parents have reached another agreement. REP. BUNDE said the provision addresses those parents who cannot agree on the visitation schedule. Number 540 CHAIR TOOHEY asked, if the schedule is not upheld by either, will the court take action? REP. BUNDE explained that there must be a complainant. CHAIR TOOHEY then asked where the parents would go. REP. BUNDE replied that they must go to court. CHAIR TOOHEY asked if a charge must be filed in court. MS. LAUTERBACH responded that they could go to the district attorney. Number 563 REP. BUNDE directed the committee back to the concern of Christmas and if it should be alternated and asked for discussion. REP. VEZEY said he did not have a strong preference but indicated that because of the nature of today's society and the distances involved for those who must travel, that perhaps the option of every other Christmas would be more convenient. REP. BUNDE said he would like to include permissive language within the bill that would offer the alternation of the Christmas holiday as an option. He asked Ms. Lauterbach how the change would be drafted. MS. LAUTERBACH explained that she would need a little more clarification and asked if the provision would be at the option of the parents or would it be something the court would designate after hearing travel circumstances. REP. BUNDE said he was unsure if it could be made completely the option of the parents. He asked that it be included as an option the courts could offer to the parents. Number 635 REP. OLBERG indicated that the existing provision states that "...the court shall award the visiting parent at least the following... So, I would like to retract my previous use of the word flexibility, because that's fairly straight forward." He then indicated that the provision is on page 3, line 9. REP. BUNDE said, "...then we go down to B, where the court shall award... But, there is some flexibility in light of the child's best interest." REP. OLBERG suggested that the provision specifies that the court shall award some sort of equitable visitation rights. REP. BUNDE said he would like the courts to have some type of guidelines whether they want them or not. REP. OLBERG said that every other Christmas should be included as an option. REP. G. DAVIS suggested that the Christmas option could be added as a 5 after 4, that indicates the option of every other year. Number 676 REP. BUNDE said he preferred the language "may" offer rather than "shall." He asked if that would be confusing language. He asked Ms. Lauterbach to suggest appropriate language. REP. VEZEY said it was not his intention to advocate that a multiple choice statute be created. He said that reasonable people can work out many complicated problems. He said a choice needed to be made as to which is a better structure. He asserted that the suggested amendment would be more workable for a greater percentage of time than that of the original proposal. REP. BUNDE agreed, but said he did not want to preclude the original option for those parents who live three blocks away. He felt they should have the option of splitting Christmas Eve and Christmas Day. MS. LAUTERBACH said that the language she wants to propose is based on what the committee expressed as a concern that the courts consider travel distances over the Christmas holiday. She suggested adding to subsection B "...if the distance between parents makes the Christmas schedule under 3 and 4 impracticable, if the court finds it is impracticable because of distance, the court shall award alternating Christmases." CHAIR TOOHEY indicated that Mr. Kenneth Kirk was still on line via teleconference and wished to comment on the discussion. She asked for further discussion from the committee first. REP. KOTT referred to page 3, line 10, and said that he is concerned that it provides for at least the minimum visitation rights and he felt that the courts would have much discretion to award Thanksgiving every other year. The minimum is every other year. He said the court can award it every year. He asked for comment. Number 801 MS. LAUTERBACH said Rep. Kott's point was well taken. She said the words "at least" no longer makes sense as the detailed schedule that was in the original bill is no longer there. She recommended deleting "at least" from page 3, line 10. REP. BUNDE read the sentence without the words "at least." He said he considered the change a technical amendment. CHAIR TOOHEY asked Ms. Lauterbach to address the issue of domestic violence. MS. LAUTERBACH stated that subsection B addresses the issue as far as the minimum visitation is concerned. If a situation is detrimental to the child because of abuse by the visiting parent or by whoever the visiting parent might live with, and there is evidence on the record to support that, the court can vary the schedule. However, she said section B does not relate to testimony regarding relocation, page 3, lines 1-6. She explained that the way the provision is now written, a parent must give notice if they are going to temporarily relocate to a "battered persons" shelter. She considered it to be a flaw within the bill. REP. BUNDE said he could not imagine a prosecutor choosing to prosecute in that type of circumstance. He asserted that there would be judicial application of the statute. He then said he would be amenable to changing the provision to allow for emergency circumstances. He then questioned what constitutes an emergency and explained that some people might consider a toothache an emergency and fly to Wisconsin to see their favorite dentist. Number 862 CHAIR TOOHEY asked Rep. Bunde to change the language to include provisions for abusive emergency situations. MS. LAUTERBACH explained that it would not be a difficult task to include a special exception for relocation to a shelter that is within the domestic violence counselling system within the provision. She said that she would have to refer to statutes to see how the shelters are referred to before suggesting specific language. Number 879 REP. VEZEY referred to the issue of grandparents as mentioned in the written testimony of Mr. Clark. He indicated that he did not want to further "muddy the water" but asked if the committee could address the issue. REP. BUNDE asserted that addressing the issue would be muddying the water and said the bill addresses custodial rights of biological parents. He viewed the issue as beyond the scope of the legislation. However, he did acknowledge the issue as a problem. CHAIR TOOHEY agreed that the proposed legislation may not be an appropriate vehicle for the issue and indicated that she knew of several people who are being denied visitation to their biological grandchildren. REP. OLBERG suggested that the issue be addressed at another time. Number 917 MR. KIRK said he suggested splitting Christmas because it was his understanding that most parents prefer the split as it is lonely enduring the entire vacation without the child. He stated that he knows of parents who do extensive travelling during the Christmas vacation and felt that alternating Christmas would be appropriate in those circumstances. He further stated that he could not conceive of a judge who would allow the prosecution of a parent who relocated to a domestic violence shelter. He also indicated that nothing in the proposal prevents the court from awarding additional time for visitation with grandparents. Number 974 REP. BUNDE said it was his preference to hear the bill again on Tuesday, March 15, 1994 with input from Ms. Lauterbach and perhaps testimony from law enforcement. REP. B. DAVIS stated that she has problems with minimum visitation. She felt the guidelines did not need to be put in statute. She indicated that there are times when the child decides that they do not want to visit that parent. She asked if the child should be forced to visit and if it was in the best interest of the child. She felt that the CS was better than the original bill but said a lot of work still needed to be done to make the legislation more flexible. She explained that there are some parents who are so vindictive that they will do anything in their power to make sure that the law is carried out to the letter without any concern to the best interests of the child. She said the issue needed to be discussed, but did they need to be in such specific terms within the bill. REP. BUNDE said that there are people who will not allow access to the child for the other parent. REP. B. DAVIS said that something needs to be done about those people who won't allow access because the majority of parents will allow access. Number 050 REP. OLBERG explained that he views the legislation as a noncustodial parent's bill that addresses the problems of noncustodial parents. REP. BUNDE asked that the proposal be tabled until Tuesday, March 15. CHAIR TOOHEY asked Rep. Bunde to address the issue of a child who does not want visitation with the visiting parent. MS. LAUTERBACH stated that the court is supposed to consider the issue and that the wishes of twelve year olds and older are very determinative of what the court will order. Although, she said, there is a minimum within the proposal that would give the courts less flexibility. She also said that younger children sometimes will say no to everything and indicated that there is existing statute that relate to the issue that say a child's unwillingness to go is not considered just excuse for denying visitation. Number 090 REP. BUNDE reiterated that he would like someone from law enforcement to address the aforementioned issues. REP. VEZEY stated that he has a problem with the penalty clause. He felt that if parents are put in jail for a year, they would not be very good parents. He said the issue is custody and the concept of threatening jail sentences is a luxury the state cannot afford. Seeing no further discussion before the committee CHAIR TOOHEY ADJOURNED the meeting at 4:53 p.m.