TO AMEND THE LAW REGARDING THE PRESUMPTION THAT AN AWARD OF JOINT CUSTODY BETWEEN PARENTS IS IN A CHILD'S BEST INTEREST WHEN THERE IS DOMESTIC ABUSE.

who's behind all the additional language here in house bill 1848 I don't know this is representative Hudson's bill if someone approached if you don't know that's fine yeah because the joint custody law is fairly new and was passed because there was not only a feeling it was factual that the with many of our judges that one gender had an advantage over the other gender when it came to custody and we had judges testify against joint custody and one said that there were no judges like that and then the very next breath said but the ones that are like that are retiring so of course both couldn't be true the and as and you know who carried that bill I did and I find it interesting that I haven't seen this bill with the need to make changes to the joint custody law until now you have any idea of why I wouldn't have seen it before no sir a couple things to your one point I'm also not the senate sponsor this bill and I just became engaged on this really in the last I would say 24 to 36 hours the last 24 to 36 hours have kind of run together say with precision with precision when I first became engaged on this and so you know when I did I probably should have brought it to you Mr. chair at that time and I'm sorry that I did not do that but my involvement fingers at you but you understand my point I do I do and I you and I have a difference of opinion on the joint custody law which is fine I totally respect your position I think the presumption of joint custody for both parents is a good thing you know my concern which I stated at the time to you was about the fact that the presumption could only be overcome with clear and convincing evidence which every judge applies differently and so I think there's a lack of consistency of the application in courts across Arkansas and I personally I'm certain there are people who have benefited from that law since its passage in 2021 I personally know people who have suffered because of it because they've stayed in marriages with an abusive parent because they feared they would not be able to overcome that presumption in a divorce proceeding and their children would be with the abusive parent outside of their presence half the time and they did not want to subject their children to that and I don't want to re-litigate that this is not attempting to re-litigate that the presumption of joint custody from the bill in 2021 it's a really narrow exemption that if the judge who's conducting the who would be making that determination anyway about whether the presumption has been overcome by clear and convincing evidence if the same judge determines that one of the parents has engaged in domestic abuse it shifts the burden back to the parent who has been found to have been abusive and I think that's appropriate if the judge who's making your custody determination finds you have abused your kids then the burden of proof should shift back to you that you shouldn't be able to have access to your kids and we have any judges to testify on this? not that I'm aware of I know Representative Hudson did put language in here at the request of the judicial counsel there goes back to my first question where it came from that may be the case I don't know the answer to that because that's very important and this had it had this been presented been presented and we had had weeks to discuss it perhaps I would have agreed with the language otherwise when we were presenting the bill back then it would have been seen as a hostile amendment fair enough so we have a need for all kinds of new language that we didn't have a need for then judicial counsel didn't present any of that and I want to be sure that we stay let me tell you I have heard about the cases where right things were done and should have been done where people thought that because one gender was no longer considered superior to raise the kids and have most custody that how this bill was bad most of those cases I have actually heard I'm not a judge most of those cases I've actually heard but where's the abuse because that's what the joint custody bill is you have to present the evidence of abuse and often as you before these things get heated it's all kinds of things and I deal with this more in DCFS than I do I really don't deal with custody cases all in DCFS I deal with it because it bleeds over because all of a sudden a father who has not been accused of anything for years is all of a sudden guilty of the worst kind of sexual abuse and I have a always have questions when that comes up as to if he was sexually abusing the kids all this time why wouldn't we have said anything why does it just come out now because I find that almost criminal that you allowed the law sort of finds one parent at least negligent if they allowed sexual abuse of their children and didn't do anything about it is that Senator I think you know my opinion is if you're a victim of abuse and severe abuse for me to pass judgment on how you handle the situation over a period of time and you've been conditioned where you have Stockholm syndrome or whatever the case might be would I like to have seen something different sure but I think that's easy for me to say when I wasn't in that situation and if someone does eventually come forward and say I've had enough I'm not putting up with this anymore then with that person at that time even if from the outside looking in we would have liked to have seen something done sooner and because of that belief we take these things very seriously at the same time it often once the courts have heard everything we're making charges of abuse where there was no abuse to get a leg up in custody hearings and although it's against the law it appears some attorneys actually coach it what is the penalty for those who claim it and it didn't happen it would be the same penalty for any other type of litigation proceeding first of all anytime you make a representation to a court or in a court you're under penalty of perjury and if you say anything that's false then that's a crime in Arkansas those are for the parties for the attorneys on top of that we have a rule of civil procedure rule 11 that we have to have a reasonable basis in law in fact for everything we present to a court and if we don't have a reasonable basis in law in fact for what we present to a court then there can be disciplinary proceedings issued against the attorney who violates that standard so that would be the case in this setting and every other litigation setting and in reality when are either of those things happening? it's rare I'll grant you that other questions Senator Deese thank you Mr. Chair and Senator Tucker you had mentioned some of this earlier I received a letter from a lawyer that primarily practices and family law and they may or may not have testified on the house side but they sent me some notes that I would love your thoughts on for this as well and it was something to the tune of concerns around 1848 would circumvent the joint custody law from the 2021 law that we just referenced earlier and then concerns around what's best interest of the child to be in custody or care and then finally can we just take those one at a time? I'm not sure I'm going to remember all of them let me go to this because this is the one I had the most concern it was in their experience they described that in every divorce case that there's accusations thrown at the other party and there was concern I believe in my layman's term that this bill would create it by just allegation alone that there could be a decision made without proof of evidence of abuse and the difference between abuse and violence and I think control I'm going to get to what's terminology control course of control so in your opinion when you hear me describe the concerns from this family lawyer is this bill going to make it easier for just allegations alone to be a determining factor on custody or is there still going to have to be evidence presented for abuse I don't know if I made that clear or not you made it very clear and I'm really glad you asked that question because I want the answer to be equally clear before I answer the course of control language I don't know I'm not an expert on all the domestic violence bills coming through but the course of control language is in another bill it's not in this bill the course of control language so for what that's worth what your other question about whether this would empower allegations to affect custody I think is in line with a question Senator Clark was asking and in line with the first point your constituent made about whether this would circumvent the custody law that we passed in 2021 and the answer is absolutely not because this is actually establishing and this I think goes if anything I think in a way this is consistent with what we passed in 2021 because Senator Clark's goal was allegations I mean I don't want to speak for Senator Clark my understanding of one of Senator Clark's goals is allegations are not enough you need to have proof right I would align with that and and Senator Clark can and should correct me if I've misstated that but what this is established a proceeding where you have to establish proof in front of a court at a court proceeding and you have to prove it by a preponderance of the evidence which is the same standard in any civil court and then if you prove it by a preponderance of the evidence it doesn't mean the parent can't respond it just means the burden of at the beginning the burden of proof is on the parent who's making the allegation but they have to satisfy that burden they can't make the allegation and that be the end of it they have to satisfy that burden of proof and what this bill is saying is once you have satisfied that burden of proof to your judge's satisfaction then the burden of proof shifts to the person who the court has found with evidence has abused the children thank you other questions from the committee we have Brian Vendiver to testify against thank you Mr. Chair Brian Vendiver on behalf of Arkansas Advocates for Parental Equality and I want to start by saying that this absolutely has everything to do with Act 604 and the rebuttable presumption of joint custody that has been passed by Senator Clark Representative Gasway and others worked so very hard to pass four years ago we were very much a part of that process and I'd like to share just quickly what we've heard since the passage of that act what we've heard since the passage of that act that it has been a very good change in the law that it has worked as we had anticipated that it has reduced litigation in custody cases and made the process much more fair for all parents we have heard that it has focused the litigation on the cases that truly need to be litigated in family court and that comes from not only litigants but lawyers and judges as well in fact in discussing amendments on this very bill 1848 which the predecessor of it was 1434 and I'll speak to that in a moment but in discussions with Representative Hudson who was one of the most vocal opponents of Act 604 she went to the well to speak against it four years ago and she admitted in discussions that yes that act has actually worked and she sees that now and so and I would also say that Judge Amy Johnson Moore Plaskey County circuit judge who helped work on this bill also has said openly that Act 604 is a good act and is working well in family court what this bill does and our concerns with it are a couple as has been discussed there are exceptions to what we did in Act 604 exceptions to the presumption of joint custody one is if you have evidence by clear and convincing that it's not in the best interest exception another exception is if one of the presumptions that was already in the code applies and there were two one is at issue here the domestic violence or domestic abuse exception that exception was in the code prior to Act 604 we work with Representative Hudson on changing what used to be 1434 and a lot of the amendments were made that we suggested and we appreciate the good work that she did on that to make it more palatable however there are still problems number one going to the definition of domestic abuse what this does is it copies and paste the definition of domestic abuse from the different code section that Senator Clark referred to which is the domestic violence act that was adopted in 1991 that act was adopted for a different purpose particularly for orders of protection and domestic abuse situations and under that code section originally it was limited to physical and sexual abuse what we'll see in another bill that there are some who want to expand that definition of abuse and what we had an objection to was that copy that cross reference to that section so we asked that the actual language be included in this bill to limit it just to physical abuse and sexual abuse the problem is it still changes the language of the custody code because the exception in the custody code talks about domestic violence and I think there's always been a question of is that something different than domestic abuse and we would say that yes this does it expands that definition from domestic violence to domestic abuse and creates more opportunities for this exception to apply than would have existed before this bill in other words it creates a bigger window a bigger opportunity for those who wish to claim domestic abuse under the custody code section and use that to their advantage and now to senator Clark's question of who's behind this bill I think I can answer that and that's the Arkansas coalition against domestic violence the courts did not this is not part of judicial council's bill package this is not brought formally on behalf of AOC or the judges it's my understanding that this was drafted and promoted by the Arkansas coalition against domestic violence with which judge Amy Moore has worked and she and I again work together on making this better but as I said there's still problems with that definition let me go to a second and more problematic problem we work successfully with representative Hudson in the House side on 1434 the predecessor to this bill to remove specific language and the phrase is or care in the bill and it's on page 2 let me get my lines of there it is so 1848 page 2 if you look at line 9 and line 17 so what we have in this version of the bill is a phrase custody or care and we had worked specifically to eliminate that phrase or care because that phrase doesn't make sense in the code this section of the code specifically relates to custody and having that phrase or care in there is nonsensical that's what the next section of the code deals with that begins on line 19 and so I don't know if that's a Scrivener's error or something else but that's a problem that we noted with 1434 it was corrected in the House side and now with this new bill it has reappeared so that's another problem that we see we just had the opportunity to digest the amendments from this morning and that cures one of another problem that we had with the domestic intervention program that's now been deleted from this bill so we're happy with that amendment but I would just end with we worked very hard four years ago to pass what we can do and what many others say is one of the most monumental and positive changes in family law in our state's history and it has overwhelmingly worked very well and we are very much opposed to any opening of reducing the effect of Act 604 and we think that the way that this bill is written unfortunately does that make sense questions from committee hearing none thank you for your testimony we have one more signed up to testify Gina and Delacato to testify against good morning chair my comments we're going to be about would you identify yourself with the record I'm sorry my name is Gina and Delacato and I'm with Arkansas advocates for family quality and my comments we're going to be in regard to the domestic violence intervention programs which I was able to talk to the sponsors about and they had them ended out so that's what the handout was for and so my testimony on that is not necessary at this point all right thank you there is no one else testify for against center Tucker you're recognized close for the bill thank you Mr. Chair and the engagement and participation of Mr. Vandiver everyone in the process the process is better when there are more people engaged when they're being thoughtful so I just want to say that a couple of procedural things while they were testifying Mr. Chair I did receive a text and Mr. Vandiver said this but in no uncertain terms this is not a judicial council bill I don't know if the Arkansas Coalition against domestic violence brought it to representative Hudson I do believe they support it I don't know where it originated so just clarifying that as a final note I do want to say on the record not an excuse and I know you weren't digging at me Mr. Chair but I still not an excuse but an explanation as soon as I became engaged on this I should have come directly to you and I just want to say I'm sorry for not doing that I should have done that on the substance of the bill I do believe ultimately that this I agree with Mr. Vandiver and I don't want to put words in his mouth but I do think that there's a lack of clarity right now as to what qualifies in the code and I think this help clarifies what qualifies as domestic abuse for a judge to consider in a custody proceeding so when it boils down to it for your vote on this bill the question for you is if the judge in the custody proceeding has found with evidence that one of the parents has domestically abused the children should the burden of proof shift to that parent to demonstrate to the judge that they should have time with their time alone with their kid I believe the answer to that is yes that is in the best interest of the children I'm comfortable saying that across the board in every case and so that's why I am supportive of House Bill 1848 and I would appreciate a good vote on this bill as amended A motion from Senator Tucker, a second from Senator Deese I'm sorry Gilmore Senator Deese would have had a hard time making that second wouldn't he The discussion Senator Tucker I would have not been at all surprised if somebody had approached me with any legislation especially major legislation to say hey here's some after it's been in practice for a while here's some changes that we think ought to be made and I think you know as most other people know that I am reasonable enough to sit down and find out that indeed there are improvements that can be made when that isn't the way it happens you have to be suspicious not only of motives but of the words no one including yourself has presented compelling evidence as to why we need a change and like I said I'd be glad to sit down and talk to judicial counsel to talk to whoever and if there are such changes that need to be made I'll be on board but not having had those conversations I have to see it as an attempt to subvert what was done and I would appreciate the committee voting no other discussion Hearing none all for the motion signify by saying aye all opposed no the bill has failed we got anything else up no one else has got a bill to present what we're going to do unless you tell me something different is we're going to recess rather than adjourn a recess upon the call of the chair it's not my intention if we come back this afternoon to hear anything controversial but don't anybody think that we want and therefore not be here so but you know that all kinds of things come up here in the last few days and so I want to leave the door open for somebody to get a bill through or just hear a bill that we can do that hearing no objection to that we are recessed upon the call of the chair