Legislature(2015 - 2016)GRUENBERG 120
04/12/2016 01:00 PM House JUDICIARY
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HB 334-CHILD CUSTODY; DOM. VIOLENCE; CHILD ABUSE 3:00:56 PM VICE CHAIR KELLER announced that the next order of business would be HOUSE BILL NO. 334, "An Act relating to visitation and child custody." [Before the committee was HB 334, Version 29-LS1409/I.] 3:01:05 PM REPRESENTATIVE MILLETT moved to adopt HB 334, Version 29- LS1409/H as the working document. There being no objection, Version H was before the committee as the working document. 3:01:28 PM CRYSTAL KOENEMAN, Staff, Representative Cathy Munoz, Alaska State Legislature, said Version H is the original version of the bill introduced by Representative Munoz modifying visitation in child custody statutes. Currently, AS 25.24.150 allows for a rebuttable presumption to be utilized if there is a history of domestic violence. She advised that history is defined as one serious incident, or more than one incident of domestic violence as identified by the judge. This legislation seeks to change that language from "a history of domestic violence" to "a conviction of domestic violence," she said. VICE CHAIR KELLER opened public testimony. 3:02:50 PM REBECCA SHIELDS, Executive Director, Kodiak Women's Resource and Crisis Center, said she has worked in the field of domestic violence and sexual assault for 25 years, and within her experiences, has come to learn that domestic violence is an isolated and secretive crime that happens behind closed doors and is; therefore, hard to prove in a court of law. Currently, with the state's budget crisis, its district attorney's office, law enforcement offices, and courts are suffering from budget cuts and understaffed with reduced working hours. The threat most often heard from victims is that their abuser told them if they leave the relationship, the abusive partner will take the children, or sue for custody. She related that the threat is already all too real for victims, because the abuser is oftentimes the main wage earner in the household with the money to fight for custody. She said that victims stay or return to their violent relationship because, in their minds, it is the only way to keep custody and protect their children. This legislation will validate the victims' greatest fears, to not be able to protect their children in court protected or custody cases, would be realized. The most undeserved victims of domestic violence incurring the greatest harm are children who grow up in violent homes. Alaska has 1.4 times the national rate in child abuse, and this legislation disregards the rights of children's safety as priority. The consequence of HB 334 is that children would be sentenced to living in violent households either as witness to, or direct recipients of, violence. The Alaska Network on Domestic Violence and Sexual Assault (ANDVSA) worked hard with the legislature to pass the current rebuttable presumptive law in 2004 to protect Alaskan children. She explained that under the law prior to 2004, parents and children were killed during custody disputes, that current law saved lives, and the legislature should not mess with that. She advised she is strongly opposed to HB 334, and urged the committee to not move the bill forward. 3:06:30 PM PAUL GRANT, Attorney, said he has practiced law in the domestic violence and sexual assault field over 25 years. In his experience, he related, the current law frequently destroys relationships between children and parents who are not violent, and have not committed any physical violence or psychological violence against the children. Under current law, once the court is forced to impose supervised visitation there are many barriers to supervised visitation being effective contact. He explained that those barriers can include, costs, unavailability of a batterer's programs in remote communities, lack of qualified supervisors, and any number of problems. He expressed, current law needs to change, and addressed the differences between the original bill (Version H), and the committee substitute (Version I), and noted his personal preference for Version I. He explained there are two ways to approach the problem, but they both come down to making sure that the people subjected to a presumption or supervised visitation, are people who are causing harm to children. He said, often there are technical violations, such as an accidental encounter in a grocery store, which leads to a violation of a protective order, which then triggers the presumption, and from there all of the consequences roll downhill. 3:09:17 PM MR. GRANT suggested requiring a conviction of the crime before imposing the presumption, which makes clear this person actually committed some act of violence that caused harm to the children of that marriage. The committee substitute approach was different in that it establishes the highest civil level of proof, clear and convincing, in order for there to be a history of domestic violence. In the event there was an act of domestic violence, the court must take that into consideration in the custody determination. Or, he said, under the committee substitute, "conviction of a crime." He explained there are two ways to get to the history of domestic violence. The most beneficial aspect of the committee substitute is that it gives the court discretion. MR. GRANT pointed to Sec. 2, AS 25.20.061, page 1, lines 13-15 and page 2, lines 1-4, which read: If visitation is awarded to a parent who the court finds by clear and convincing evidence has a history of perpetrating [COMMITTED A CRIME INVOLVING] domestic violence or been convicted of a crime involving domestic violence, against the other parent, [OR] a child, or a domestic living partner [OF THE TWO PARENTS], within five years preceding the award of visitation, the court may set conditions for the visitation, including MR. GRANT explained that it gives the court a checklist of [conditions it can set] to protect the child in a case where it has found domestic violence. He explained that when the court finds there is domestic violence committed by the accused, there are then eight different protections the court can put into place in that particular case. The conditions do not, necessarily, involve removing the child from the parent, whereas, under current law the court really has no choice. For example, he said, if there is a finding of domestic violence, the conditions can include: supervised visitation; possibility of a batterer's program if available; alcohol or drug restrictions; paying the costs of supervised visitation; and a number of other conditions. 3:12:28 PM MR. GRANT opined, the most important factor is giving the trial courts the discretion to make reasoned decisions as to whether this person is a danger to these children. Under current law, under the presumption, that [discretion] does not happen. He explained that the court does not have a choice to determine whether this person is a danger to these children, and opined that the court does not want to destroy the relationship between a child and their parent. He said his preference is taking the presumption out and making it a clear and convincing finding by the court, which would then trigger the protections the court can impose. He pointed out that either version gets the law moving in the right direction, which is to not destroy relationships between parents and children in the absence of a concrete showing of harm to the child involved. 3:14:08 PM REPRESENTATIVE KREISS-TOMKINS asked how often the rebuttable presumption has been invoked in these custody cases, in Mr. Grant's experience. MR. GRANT opined, it is invoked approximately 10-15 percent of the time, wherein possibly 20 percent of the time there would be a couple of incidents of domestic violence when discussing the entire universe of custody cases. Another problem, he said, is that due to the way the law is structured, if the parent contemplating suing for divorce wants to obtain custody of the children, and that parent is able to convince the court there were two incidents of domestic violence, then that parent has immediately put their ball in the five yard line of the other team. He advised he has often seen the tactic of invoking the rebuttable presumption used in cases where there is no danger to the child. The presumption is invoked because it gives that parent an advantage in the unfolding custody litigation. He opined that he could not offer a statistical number, other than it is pretty substantial, but he could say there are a number of cases in which he has seen the tool applied. 3:16:40 PM The committee took an at-ease from 3:16 p.m. to 3:17p.m. 3:17:05 PM VICE CHAIR KELLER advised that Chair LeDoux had returned, but he would continue as chair through the conclusion of Mr. Grant's testimony. REPRESENTATIVE KREISS-TOMKINS asked Mr. Grant, as a family law attorney, which side of these cases he finds himself on. MR. GRANT responded that he has represented both parties a relatively equal amount of time. He pointed out that it is more common the mother invokes the presumption; however, he has recently been involved in a couple of cases in which the mother was the perpetrator. Although, he related, it certainly is not a gender exclusive phenomenon and he finds himself on both sides of the issue, and both sides of parents of both genders. 3:18:56 PM REPRESENTATIVE KREISS-TOMKINS referred to the court finding that the domestic violence had occurred and the presumption attached with the notion of a technical violation, and asked how technical a technical violation can be. He further asked Mr. Grant to illustrate two technical violations from his prior cases, how uncommon it can be that someone who, in his view, does not pose a danger to a child can be found of two infractions of domestic violence, and the presumption be invoked upon them. 3:20:01 PM MR. GRANT offered the example he presented within his written testimony for the previous committee, and advised that the facts were modified slightly so the people involved couldn't be identified. During an argument the father slammed a door in the house and broke the door frame, and the police were called but never did anything about that. Although, technically speaking that is malicious destruction of property or some sort of an assault. The court found, on request for a short-term restraining order, that incident constituted enough of a showing to obtain a short-term restraining order. Subsequently, the father ran into the mother in the grocery store, and not having consulted with counsel yet, asked the mother what they were doing, can't they stop this, and figure out some other way to work it out. At some point the conversation got a bit heated and the father finally walked away. The mother called the police, he was arrested for violating the 20 day restraining order, supervised visitation followed, and he didn't see his children for a long time. He pointed out that that is the type of case that concerns him. An argument can be made that the father is a perpetrator because he slammed the door during the argument and the child heard it, and that's domestic violence that children are exposed to. He opined that no reasonable person would say that is a situation where a father should lose his relationship with his children, and that is the type of issue the bill needs to address in whichever version is taken up by the committee. 3:22:36 PM REPRESENTATIVE CLAMAN offered that several of the folks previously testifying discussed the challenges in domestic violence cases, and that reporting is a large issue. He pointed out that this discussion is not the slamming of doors in anger cases, but rather cases wherein people are physically assaulted and those children put in danger. He also pointed out, there are domestic violence orders not resulting in prosecutions for any number of reasons. Previous testimony indicated that this legislation makes it harder to reverse the trends in domestic violence cases if the legislature changes how these domestic violence orders are managed. He asked how Mr. Grant responds to that critic of both versions of the bill, not focused on the slamming of the door scenario where people are potentially abusing the domestic violence protective order statute. He asked Mr. Grant how he balances those issues due to the issue of domestic violence in this state. 3:24:38 PM MR. GRANT responded that the problem Representative Claman posited is that it is an "either or" situation, either the perpetrator gets away with it, or potentially the protections are abused. He opined, the solution is judicial discretion, the judge's ability to look down at these parties and relate what he believes happened, and what should happen to protect the children or the other spouse. Thereby, giving the judge the ability to prevent destruction of a parent-child relationship unnecessarily, and [Version I] does that. Although, he noted, at the end of the day there probably will be hard cases where a choice has to be made as to the unnecessary destruction of parent-child relationships. The criminal system is set up to provide those kinds of protections, he remarked, and whether it does so, or not, he couldn't speak to how often prosecutors roll over on a case that should be prosecuted. He suggested there are other things to do about that, such as educating prosecutors, make referrals to prosecution easier, and other ways to approach that. He conceded there is a tension there, and [Version I] probably addresses that better by making it either a conviction of a domestic violence, or a finding of domestic violence. [VICE CHAIR KELLER passed the gavel back to Chair LeDoux.] 3:27:44 PM The committee took a short at ease. 3:27:57 PM SARALYN TABACHNICK, Executive Director, Aiding Women in Abuse and Rape Emergencies (AWARE), said she has worked at the Aiding Women in Abuse and Rape Emergencies (AWARE) Center for 29 years, and during that time has worked with children who have experienced domestic violence or sexual abuse. She clarified that a slammed door doesn't, necessarily, mean that these people are a domestic violence offender. She pointed out that she does not want to minimize what domestic violence is, and described it as an ongoing pattern of behavior wherein people live in fear of an intimate partner in their home abusing power and control over them. She offered that children live in fear and slamming doors can be very fearful, it's not an isolated incident. She clarified, this is not about destroying relationships between parents and children, it's about keeping children safer, and the legislation does not keep children safer. In order for a conviction to occur, someone has to call the police, and in order for someone to call the police, they have to not be afraid of calling the police and not be afraid of getting the perpetrator in trouble. The [victims] must be willing to take that step. She continued that there has to be an arrest and a conviction. It is uncommon that there are consistent convictions in domestic violence, because quite often charges are pled down to disorderly conduct, and then there is no domestic violence. 3:30:51 PM MS. TABACHNICK related that under current law, rebuttable presumption requires a judge to find a history of domestic violence. She referred to previous testimony as to leaving it to the judge's discretion, and advised that current law protects Alaska's children exposed to domestic violence by requiring courts to consider that. The presumption is rebuttable, which means an accused domestic violence offender has the opportunity to come forward and contest it. She related that knowing all of this, the rebuttable presumption law puts faith in Alaska's judges to rely on collateral sources to determine a finding of domestic violence. In the event a history is found, the court has discretion to decide whether unsupervised, or supervised, visitation is best, and require the perpetrating parent to participate in some sort of programming. She explained that this does not mean an offending parent can't see their children, and when people say the father hasn't seen his children for a year, that is not because the court didn't allow it, she remarked. She stated, it means the parent made a choice to not see their children, because the court requires [certain' conditions to keep a child safe, generally a supervisor being present. She pointed out that this has also been helpful in assisting parents to get help, and Alaskan judges do not take that responsibility lightly. She urged the committee to let judge's do what they do best and what Alaskans trust them to do, look at all of the evidence, and make an informed decision about domestic violence in a given relationship. Current law is based upon language from a model code drafted by the National Council on Juvenile and Family Court Judges. She said that Alaska is one of twenty-four states to have a rebuttable presumption against giving custody to parents with a history of domestic violence, and that is something to be proud of, rather than looking to change. 3:32:56 PM MS. TABACHNICK advised, more often than a rebuttable presumption protecting children, AWARE sees children ordered by the court to spend unsupervised time with an abusive parent, a parent they have seen be hurtful to their mothers, a parent they are afraid of, and a parent who may be directly abusive to them as well. More often than a rebuttable presumption protecting children, AWARE hears mothers trying to protect their children, mothers whose hearts are wrenched put as they send their crying and pleading children to be with a parent they are terrified of. Then, she stressed, when their children return, they have nightmares, are angry or anxious or bed wetting for days until they are able to be soothed and calmed only to have this pattern repeated the next weekend. She said that Alaska is raising children who are learning that their needs and feelings don't matter, that their boundaries are not to be respected. Therefore, she said, they learn that they are not allowed to have boundaries and thus have no skills in either setting boundaries or believing they have rights to boundaries. Alaska, as a society, set up the most vulnerable children to be harmed again and again. She related that she finds HB 334 to be one of the most disheartening bills she has ever spoken to in her 27 years at AWARE. If anything, Alaska needs laws that further protect children, not laws that make it more difficult to keep them safe, she related. 3:34:58 PM REPRESENTATIVE KREISS-TOMKINS asked what kind of supervised visitation programs exist in a community such as Juneau, how available are those kinds of programs in different parts of Alaska, and what cost would they have to the supervised parent. He asked her to provide her perspective on the realities of supervised visitation. MS. TABACHNICK responded, there is one local agency offering supervised visits, and she was unsure whether other venues were available or arrangements could be made with the court in terms of finding a supervisor that is agreeable to all. She advised that when she hears about parents not seeing their children for a year, she stated that it is not because they couldn't find a supervisor or couldn't afford to pay for one, it is because they don't want to be told by the court or anyone that there has to be a supervisor, and they put that in front of their relationship with their children. She said that is also not unusual to see when domestic violence has occurred and the problem is not the presumption. She remarked that she hoped people would look more at justice than [using the rebuttable presumption as a tool and] winning. 3:37:51 PM REPRESENTATIVE KREISS-TOMKINS surmised that in situations Ms. Tabachnick has seen, indignation and righteousness is a barrier for the parent seeing the child and not necessarily the external barriers, such as cost or lack of services. MS. TABACHNICK agreed. REPRESENTATIVE CLAMAN clarified that Mr. Grant said he had considered using it as a tool but never actually done so, although he may have misheard him. MS. TABACHNICK thanked Representative Claman because she is happy and relieved to be corrected on that. REPRESENTATIVE CLAMAN related that doesn't mean that others, not represented, may not use it in that way. He referred people who may use slamming a door as a basis for a domestic violence petition, and the court may or may not approve the ex parte petition. He said those are contrasted with cases involving horrific instances of domestic violence that anyone would agree was awful by anyone's approach. He asked whether she has seen cases where it appears someone is using a single incident to push forward their domestic violence petition. He offered that he was trying to get the breadth of her experience in what she sees coming into the shelters. MS. TABACHNICK answered that she does not do a lot of direct service, and she does not believe AWARE receives many people coming in just to look for a protection order, because the AWARE center looks for certain elements necessary to receive a protection order. Therefore, AWARE is looking for those elements and not looking to abuse or use the system, but it may ask someone why they are coming for AWARE's services if the issue is not one that puts them in fear. CHAIR LEDOUX advised that Fred Triem is next and pointed out that she normally does not allow people to testify under public testimony twice, and she is making an exception in this case because the bill being heard today is different than the bill heard a couple of days ago. 3:41:15 PM FRED TRIEM, Attorney, advised that the task before the committee is a task of legislative drafting, and that it is better to use a precise word or term in preference to a vague, amorphous, or uncertain term. He explained, this bill does a good job of replacing vague, amorphous, and imprecise terms with exact precise language. For example, under Version H, page 1, line 5, and the phrase "committed" as in committed a crime, is replaced with the phrase "been convicted of a crime." He pointed out that when reviewing the second, third, and fourth pages of the bill this legislation is improved in eight different places by replacing the vague phrase of "a history of perpetrating" with a precise phrase "convicted." He described this as the best bill he has seen because it will improve Alaska's law, it will save the court system a lot of time, and it will eliminate a lot of expensive hearings. MR. TRIEM referred to judicial discretion, and pointed out that the problem is that it requires time, requires a hearing, and a trial. The language of the bill eliminates the need for judicial discretion because discretion took place in an earlier proceeding wherein a defendant had their trial and exercised their due process rights. He remarked, this bill will not give free rein to child abuses as it simply protects Alaska's judicial system, the people involved in domestic violence, streamlines the process by requiring precise language, and eliminates time consuming and expensive proceedings. Given the late date of the session, he suggested that a good bill now is better than a perfect bill weeks and weeks from now. 3:46:23 PM REPRESENTATIVE KREISS-TOMKINS asked whether he supports changing the eighth criteria listed on page 5, lines [1-7], to a conviction of drug use or drug abuse to similarly achieve a precise and clear definition that the court does not need to exercise discretion. MR. TRIEM responded, he is not advocating a court should not use discretion. The language contained in Sec. 8, addresses the topic of different programs, some of which are not available in small towns. He stated he is not advocating doing away with discretion for a court to determine whether the defendant is abusing alcohol or psychoactive drugs. He reiterated that those are the kinds of conduct that have already been adjudicated and determined in a fair judicial proceeding. If a defendant has been convicted of abusing alcohol or using psychoactive drugs, a person can go to CourtView to determine whether there has been a conviction. He described it as a precise process wherein a determination is easily made, as opposed to having days and days of hearings to determine whether the person does, or does not, have a history of this misconduct. 3:48:19 PM REPRESENTATIVE KREISS-TOMKINS surmised that Mr. Triem is saying he wants to see a conviction of domestic violence, and asked why he does not want to see a conviction for drug possession or drug use also. MR. TRIEM replied he is not saying he does not want to see convictions. He explained that a conviction of misconduct is a result of a judicial process in which the defendant has had an opportunity to present his defenses in an orderly process, usually with a jury trial. Whereas, these cases that go before district courts and superior courts without a jury do not afford the accused the full range of their constitutional protections. In his experience, it is almost invariably a male who is being excluded by this process, because it is almost always men who lose custody of their children because they are accused of having a history of domestic violence, he said. 3:49:45 PM MS. KOENEMAN pointed to Representative Kreiss-Tomkins's question regarding substance abuse, and whether or not there is support for conviction. She offered, the language in the bill, both in current statute and Version H, doesn't contain a rebuttable presumption language regarding substance abuse, like it does with domestic violence. There is specific language, "if there is a history, they are guilty until proven innocent," which is why the sponsor hasn't addressed that issue, or why there isn't clear and convincing evidence regarding substance abuse. She explained that it is a factor the judge can consider, but there is not an automatic loss of the person's children unless they complete a batterer's program or alcohol treatment abuse program. MS. KOENEMAN pointed to a question related to supervised visitations. She explained that she has found seven programs across the entire state for supervised visitation. The cost for one program in Palmer, is a $35 orientation fee and $50 per hour. There was a 2011 Alaska Judicial Council report on the batterer's intervention programs that went through some of the stakeholder observations. She referred to the report and advised she would get copies of the report should members so desire. Ms. Koeneman said that page 6 of "that report" talks about barriers to referral, enrollment, and completion of the batterer's intervention programs, which she said states, "enrollment programs was often hindered by a lack of transportation, lack of money to pay for programs, and defendant transiency." She said the report further lists suggestions, such as "examine the need for more programs statewide; look into ways to use technology to broaden the programs to rural locations, to women, and to ease transportation difficulties; examine ways to lower program costs, and to communicate payment options to offenders at the time of the referral; develop state protocols for transferring offenders from [Batterers' Intervention Program] BIPs to another in a different location; consider ways to promote batterer's intervention programs completion by teaching offenders life skills as part of the BIP course prior to entry." MS. KOENEMAN pointed to the comment there are people attending batterer's intervention programs, or people who don't complete it, or people who choose not to. She opined there are many other reasons why, and she said, "I don't think it's just a sheer, 'I don't want to see my kids and I wanna fight,' you know, and 'I don't think I need to go.'" She opined there are true reasons as to why people are unable to complete those programs, as outlined by the Alaska Judicial Council. 3:54:02 PM REPRESENTATIVE KELLER moved to report HB 334, Version 29- LS1409/H out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HB 334 moved from the House Judiciary Standing Committee.