Aging, Children and Youth, Legislative & Military Affairs- House

To present this house concurrent resolution on behalf of representative Vaught and chairman fight this is not a long resolution but it's very important it does three things first it recognizes that child abuse and neglect is indeed a significant public health problem in the state of Arkansas and I'm not going to read the whole resolution to you but a couple of points in here and twenty eighteen an estimated three hundred and fifty thousand children were served by children's advocacy centers nationwide. Because they also served an estimated six thousand child victims of abuse providing victim advocacy and support services to them so it not only recognizes the problem it also commends our child advocacy centers for the also work that they're doing combating child abuse as well as servicing and educating and helping in response those children who are or have been in those situations and then lastly it also proclaims April eleventh this coming Sunday as children's advocacy center day. And I'll take any questions probably don't have answers will take any questions members any questions. C. nine is there anyone here in the audience to speak for or against this resolution. Representative Barker you close for the resolution I am and I would ask for a do pass we have a motion do pass in discussion. All in favor say aye. Opposed say no. And the resolution passes thank you share thank you committee. Next we have Senate bill one sixty six by Senator Clark I'm not seeing him is there someone here who's running that all right represented Fuhrman. You are. And members you have legislative impact statement on your desk thank you madam chair with your permission I'd like to bring an expert witness to the table with me. You're pretty well known to this committee that please introduce yourself for the record. Good afternoon everyone I'm Mr Martin I'm the Director of the Division of Children and Family Services at DHS. All right so this bill I'm gonna just give over a brief outline at all issued over here for more explanation and questions but it deals with who is allowed to be present during cases of child maltreatment and neglect cases and it would open it up to a relative fictive kin or an individual with connection to the family such as like a coach or a youth pastor the judge still has control was Corman can close it if he decides that he or she decides that's in the best interest of the child and with that that'll send it over to director Martin thank you well this is not at a bill that was brought by DCFS we did work closely with senator Clark in this legislation was developed in consultation with stakeholders including asked to get DCFS crimes against children division and the office of chief counsel juvenile judges the attorney of items and the Arkansas Commission for parent council under the current law dependency neglect proceedings are confidential and hearings are closed to all but those who are party to the case under this new legislation certain individuals will be able to attend those close quote court hearings the bill provides that relative fictive kin you as you know those are individuals with a strong emotional bond to the child and other individuals with the connection to the family may at ten dependency neglect hearings unless excluded by the court some judges are already allowing family members to attend court hearings across the state this bill will allow for more consistency around the state and will open up some courts where this is not already occurring allowing relatives fictive cans in individuals with the connection to the family to attend hearings one sure that the court M. parties are aware of those individuals so that they can be assessed for placement visitation and other support for the family this bill also provides that the court may allow other individuals with an interest in attending a closed hearing and dependency neglect proceedings to attend if it's in the child's best interest and the individual demonstrates a sincere. and legitimate need to attend the hearing as determined by the court and I just stressed that both with relatives fictive kin and those of the connection and these other individuals it's all determined by the court the court has the discretion to determine whether those individuals can attend the court this bill prohibits any individual who is allowed to attend the pendency neglect hearing from rediscovers in any information obtained there then during the hearing and includes at the that a penalty for rediscovery at penalty for re discussion a person who violates nondisclosure requirements may be guilty of a Class C. misdemeanor which is also the same misdemeanor class that is allowed in the rest of the child maltreatment act for we disclosure sent to consistency around penalty for re disclosure of child maltreatment information and I'm happy to take questions. Members are there any questions. I have one strictly representative Barker director Martin how would one go about if something had been disclose which you file a police report about this and probably yet you could do that but normally what happens when when we have other situations that are similar and we reach out to the local prosecutor to see if they would be interested in prosecuting and give them the fax thank you. I see no other questions are you represented Fuhrman did you wish to make a motion yes motion to pass all right and you were closed correct investors and okay sorry and I have a motion to pass all in favor say aye opposed say no. And the Bill pass thank you. Next we have Senate bill five eight nine by Senator Ballenger. Who is running this one first I can't hear you are representive Underwood. And you're recognized the manager may I have a Mister any balance on at the table yes thank you. You will introduce yourself to committee please you may need to pull the Mike forward. And committee chair I will say I have an amendment that. Actually some of you. All right if you will let your guest introduced himself and then present your amendment to this. I am Andrew Ballard I am attorney licensed to practice law in a family law practitioner. And also of all through the family law practice series book for Thomson Reuters and other lawyers by to help navigate through the court system. Right thank you. there's a couple changes that we need to make to the bill mostly just drafting errors on page one line twenty seven we need to add some language to clarify that child support has a crew headed that has accrued educated in arrears that also we need to clarify some of the the language regarding you know attorney's fees if if the committee would entertain adopt them and I think Mr ballot to dress some of those and presentation of the bill. Are there any questions about this is. What is the will of the committee about the amendment adopting them that we have a motion to adopt the amendment all in favor say aye. Opposed say no if the amendment is adopted and we're ready to hear your bill thank you committee appreciate your time thank you for adopting them and I'll turn over to value probably knows is more of an expert on this topic so. Thank you this bill the intention of the bill it appears for me from the drafting of the bill is that it is to reduce retaliatory litigation and unnecessary litigation and child custody cases when there are child support arrears or court ordered attorney's fees that have not been paid from the non custodial parent to the custodial parent and I think this bill eliminates unnecessary litigation and. And I would open up to questions of anyone. Representative Crawford. Thank you madam chair I'm over here of yes I'm sorry I came in light reading catcher nine but are you saying that if. A parent is not able to pay child support that you would want to take their visitation Wes at what I just heard no not at all what this is the bill stops modifications from being filed in the event that they're it so so there's a a clause in the bill that read that allows for somebody to file if there's an emergency but what it is that they have to be current on their child support and the file to modify but not to have as a nation follow up yes hunter already laws in place if someone misses child support payments. I think we're just taking which normally is fathers we're just adding more bricks on to their head as what I say thank you. Was that a question. Representative Crawford was that a question. Would you agree is that what you're asking I have no I would not agree there are not law sufficient to handle this type of situation actually my experience a lot of times the custodial parent will file for modification of child support or contempt and as a retaliation the father or the non custodial parent and it's not always a a father will respond by filing a modification of custody and visitation and the attorney's fees for a visitation or customized cation case far exceed those of a child support case and so it actually what it does is it gives stability for the children and it also reduces the conflict within the parents homes. Representative McKenzie. Thank you madam Speaker about. How common is this and what kind of money what kind of Arrears are usually seen in these cases. usually it's a few thousand dollars because the custodial parent well let me just give you an example and this is just from my experience a child custody case the retainer from the lowest that I've heard of from colleagues is twenty five hundred dollars in a retainer and that can go up to you know tens of thousands of dollars for a contempt action you're talking about fifteen hundred dollars in a retainer and then the attorneys bill against that and then send another bill and ask for another retainer which is customary in the practice of family law. And so when you're talking about you're talking about somebody has to get to a couple of thousand dollars before a knock at a before custodial parent will file for contempt but also the file on behalf of CSE were filed on behalf of a not a custodial parent and the noncustodial parent will counter which then requires for custody or visitation as a means to back off the child support award and then you have a situation where the custodial parent who is using CSE now has to hire private counsel to address the custody and visitation of child or children follows yes so but back to help common of an occurrence from ever hear sorry I'm sorry how common occurrence is this is this a problem that we it is often and if so what are other states doing it yes it is a a common practice I would say. I've only had maybe one case in sixteen years and a healthy law practice where there was not a retaliatory motion to modify visitation filed in response to contempt for a child support modification case as for the other states I'm not aware of the other states on what actions they've taken I believe that Arkansas is proactive in this. Representive Hudson I think that I accidentally deleted you were you in the queue. Yes I'm jealous okay would you hit your button again please so I can put you back in. Okay got it. Thank you madam chair and had judge could see you and so my question is in cases where and the non custodial parent has a rear edge but is working through an agreed upon payment plans so they're paying their monthly child support but they still have back support their pain but there were regularly paying what they're supposed to and what they've agreed to pay of that a rear ridge in those types of situations does that mean that those noncustodial parents are under the same restrictions on filing for change of custody well if we look at it from a perspective of the way the laws drafted now it's an under judicata arrears and a judgment on child support arrears I believe that if a court didn't reduce it to a judgment and allowed a put payment plan without a judgment would not affect those those a. parks. Okay and but you do think that there would be certain circumstances whether to judicata and or agreed you know that there would be separate circumstances and that's to. Different tax scenarios I do think so the way the the laws drafted I can see a distinction there that I would make as a practitioner okay thank you thank you manager. Representative Crawford. I'm sorry I did not mean to push that I apologize. Right. Seeing no other questions from the committee. We have that one person signed up to speak against judge Hamilton with the judicial council. If if you will come to the table. What is your your dismissed thank you thank you. Last question. If you would to introduce yourself and pull the Mike forward please thank you my name is ham singleton hello I'm so sorry I see that on the next line now yes no problem circuit judge from the thirteenth judicial district. We have six counties in that district I do child support in five of those six can. I can tell you that I'm in my twenty seven years a judge starting. And. I disagree totally the the to the chances of retaliation our. Minuscule. It doesn't happen that often when it does happen. Usually it's for a good call. Sometimes is there to retaliate which is. Quite frankly the sole history of this particular bill. Is one person's retaliation. in my opinion. The bill as written. In our council culture is simply cancelling the due process for alleged deadbeat dads and moms. They've lost the right to parent their child or to visit their child's because they may have a child support arrears which that is not been reduced to judgment frequently you have child support ridges that are reduced to judgment and you pay them at twenty percent of the current child support. And for those people especially who were in compliance with the court the. With the court's orders. This is a this should not apply but the way it's written it does apply any cancels their due process rights under the Fourteenth Amendment I believe it's unconstitutional. Question. Representative Springer. Thank you madam chair your honor is does this call waiting based upon what I hear you say well this calls for their possibly to be some future litigation and possibly something being referred to the Supreme Court here in possibly the being declared unconstitutional I think it will happen first opportunity. And I think that'll happen pretty quickly after after it's passed into law if it's passed into law thank you yes. I see no other questions thank you for your testimony thank you. Is there anyone in the audience to speak for the bill. Against the bill. What is the will of the committee. I'm so sorry I did not give you a chance to close for your bill representive Underwood. The manager all it Mr Balakan address some of the ninety closing needs to be done okay so I can do that I would just say it's been a year since I practicing law but I did you family law for a while and and when I had a client who come in and they had it they were wanting to file a motion for contempt for somebody wasn't paying child support I did have to warn them it happened quite frequently somebody would say that I have to warn them that they're probably going to their retaliate with a motion to change custody in there most the time I told them they weren't likely going to win but you're still going to spend money to defend that one thing I do want to address is we're not taking any time visitation away you're still on the national case you're still the course they're gonna Cycas either student decide visitation and they're going to order child support all we're saying is if you're going to retaliate or going to file a motion for a change of custody or injured visitation you need to be caught up on paying your child support so as not retaliatory as it measures on a abusive process and then lastly there is a provision in the bill that allows for imminent danger and that's defined in the bill and so it does catch all provision that provides for the judge to still have some discretion on those issues if there's a unnecessary and need for that so with that I'll close my bill and I appreciate the committee's time and I appreciate a motion I ask for motion do pass as amended thank you. What's the will of the committee we have a motion. We have a motion do pass as amended I any discussion. Okay all in favor say aye. Opposed say no. The nose have if the bill fails thank you mention thank you may appreciate that. And seeing no other business before us. We are adjourned. representative may very did you. Six I'm sorry. Do we have. Okay everybody back up I'm sorry we do have one more bill before us. Bell five eighty six. Senator Ballinger. The representative may very your your You are recognized and if you'll have your guest introduce himself yes I'm representative to read means on always confusing green should be on I'm representative Julie Mayberry. My name is Sylvester Smith local attorney could see again. Thank you madam chair thank you members most parents actually believe that you can cite a notarized document like a wheel and that that would set out who is who is going to take care of their children when they die well those parents actually are wrong and I didn't realize this until recently presently there is actually no law that allows a parent to designate someone to care for their minor children in the event of their parents untimely death. SP five eighty six sets out to allow parents to appoint a temporary guardian who has the power to care for their children for a period of forty five days and mediate Lee after the parents death. With that I'd like to introduce semester Smith who can explain this more in detail. Again as Moses you most of you know I'm a attorney here in Arkansas and the lobbyists and business consultant I'd like to call myself a street lawyer because people as what kind of law you practice and I say what it because through the door that's what I do and I've had many instances with guardianships pro baiting wheels and things of that nature and one of the things that I was concerned with as a parent and I want to be clear this started with me and my family is who we care for my sweet little children if something happened to me my wife and I have best friends that are the guy parents of our children and they are the ones we have selected to raise our children in the event of our demise and so I set out to look to the code and all of this what happens when a parent dies is in the guardianship section of the coal and there is no provision that says that a parent can designate a temporary guardian and so what this bill does is it fixes that gap so that my wife and I can sign a notarized statement in front of two witnesses just like a wheel and say we want Tony to make Washington the care for us we babies and we go down on a plane crash our babies are going to be with Tony to be washed and so if my mother or my father in law or my brother or my sweet sister in law the site will know we want to care for those kids and we would do better it allows for forty five day period for my children to mourn us my wife will be more much more than me by the way and and kind of settle and have a little transitionary period before all this gets settled out and go in can go on the court now we've really put some strong safeguards in here first of all the writing unlike a wheel if I write a wheel that's good for the rest of my life this writing is only good for five years why because the circumstances change Tony and to make a good divorce one of them could have an employment problem lord knows we've all these have experiences with drug abuse and so every five years that document has to be updated the other thing. We consider what happens if my wife one day wakes up and realizes the merry beneath their self and she leaves me will either one of us could then sign a nother sworn notarized document and revoked the whole thing and we've talked to sell several judges about this you will see anyone signed up to speak against the just singleton who's been practicing law longer than I've been alive we just talked about it he says he thinks it's a fine idea and so this just makes the law what parents believe it is and it allows the parents to have the authority to determine what happens to this week children if unfortunately they die young finally and this is a really important protection if something does go bad that we don't for see a judge can terminate the thing and then if my. Eight people decide they want to raise our sweet children forever is the place to do they do have to go see a judge after that forty five day period to get either a ninety day extension of a temporary guardianship or permanent guardianship and so we believe this is well thought out and is designed to put the parents first and let them choose what happens to their children and I'll take any questions if the chair would allow. Representative Barker. Thank you madam chair I think you answered my question this does not give. However you designate any greater standing before a judge for permanency. Right after should both parents I cease I appreciate the question I'm going to be very honest with you is all always M. it does and so what this is is the judge has to accept our choice unless he he or she finds that our choices unfit and so basically what it does is it puts our choice in the same posture we would be if we were the ones in court saying that we want to keep our children here's a reason for that represent of our I've lived on the serve for forty four years I know the circus circus of clowns and fools that would show up in court saying they want to raise my children I have forty four years of experience with them a judge is going to sit there with them for an hour maybe two and there's just no way that judge can know all the skeletons that I know about these people and why and so there's a reason I shows the people of chills and so I shouldn't have to air my family's dirty laundry in order for me to make sure my children are safe if that makes sense and we all know that families have secrets they have abuses they have things that happen in I know that when I made this nomination and so if something changes with the people I picked you know what I'm gets arrested one has a drug addiction then my brother my mother could step in and say listen Tony was fine when semester did this three years ago but now he's unemployed and he's just not living right in the judge can hear that exams to watching your run fit I'm sorry and then he can appoint my mother or someone else. Follow up yes okay so they do get. First dibs first the way a better way to say that they do get a greater standing in consideration but not necessarily any unfair advantage over family or. No okay no the only events that they get is that I chose the right based upon again that knowledge that I have and and I think that's important because. Hurt people hurt people resident bargain no I I do too I just I just was kind of unsure how that would go I know that a temporary and I just was confused FOR wanted clarification on how that would smooth over to the permanency in the in there already is a section in the law that does give the person that the parent uses an advantage in that setting that part already exists this just strengthens the event that they have but the important part of this statute is that the guardianship springs forth to use a legal term when I die and so my. Friends won't have to try to find time in money to run to the courthouse to fight for my kids while their morning me you know and I've had instances where literally the body had been cold one of the family members this call me trying to litigate this issue of who cares for the kids and god bless you know godless anybody wants to step in there but this would resolve that familial conflict again at least for that forty five day period thank you. Mister Smith this is sounding familiar to me did we consider this last session yes ma'am you did and your brilliance is once again on display chairwoman fi and what happened last time is I conceived of this towards the end of the session and we just didn't have time Senator Ballinger ribs and Murdock and I to get it right and clean it up in there was some questions that came up about the length of it in the in the the the period that it blast and so these changes with regard to it only being forty five days versus ninety of the change that says it has to be updated every five years those came as a result of the questions that came up last time thank you thank you representative Springer. Red is on. It one more time. All right thank you madam chair Mister Smith I just one for the record the record to reflect that you and I have discussed this bill and I thought that we may have had a conflict and we resolve that so I just want the record to reflect that your honor those always represents spring and I do appreciate that. Thank you representative had sent. That are up there we are hi Mister Smith thank you and and thank you representative may very for bring this I just wanted to make one distinction and have you kind of walk walk through that and for the benefit of the committee talk to me about how this fits into existing state planning abilities for example the ability for someone to put in there will or put into a living will or or some other type of of legal document that deals with these and apply things could you just kind of explain how these would fit into that spectrum of options you know what I I I do appreciate that I I find the question very helpful representative Hudson and so here's what would happen a parent could come into my office and do one of two things let's say that there's a new couple they just got married they don't have a wheel or whatever has a wheel in the other one does and that document is to be updated so what we could do is we can have a companion wheels in each wheel could have a section that addresses this issue in those sections could be identical and then it would be signed and notarized just like the law requires four wheel because that's the same requirement here I let's say it's a situation where maybe it's the people been there for awhile they both have wheels we don't need to deal with that we can create a new document that would be called parental guardianship nomination and then that document we just site this statute and say that the family has elected it would list the names of the children it was say the family have elected Jane and John Doe to care for the children in the event that they die and then the parents would signed and notarized we would then send it to Jane and John Doe they would signed and notarized to and so that way there's a confirmation that everybody's on board and that this is the plan Indian got to be at the family passes away Jane and John Doe would have a copy of this or I would have a copy they be able to contact me this oh my goodness this happen I'd I'd send him that document and they would be to show that to the family of the deceased love the. Apple to say well you know we're here this is their plan we're going to care for the children and again it doesn't stop grandma or grandpa or whomever from saying well I think I would be better and then grandma grandpa after that forty five day period or immediately if there's an emergency I want to be very clear doesn't stop that process could go before a judge and that judge she would then determine okay all these documents are proper these are the signatures is properly witness and say okay this is about the guardianship and then if there's a problem with Jane and John Doe I then the judge to say I'm sorry Mr Mrs deal you are unfit and I'm going to name someone else hopefully from the family and so that's procedurally the way I would envision is working represent us and I really appreciate the question thank you appreciate that. C. no additional questions is there anyone in the a we have one over here of the representative that you're going to need to push your button again. There we go that should get you thank you madam chair. In the case of divorce hello we have just simply recently passed into law about joint custody so could you can walk me through if if one partner wants to Jones's and they go through all the steps in the other Parker once dismiss so when there's there's equal. With the Joint could you explain that. Again I think that the law again I think that's a great question and so the way that we work in practicality is that in that divorce proceeding there would be a section in the order that addresses this and it would say the parental guardianship nomination is extinguished or I would say that is ratified and so in the case of my wife and I I believe that is she left me because everyone any who knows her knows I'd never leave her I think that she would she and I would say what we want to ratify it up because we both agree that the Washingtons are best suited to raise our kids if if we didn't agree then it would be terminated that a document but let's say we ratified in that divorce my wife later has a falling out one of the documents one The Washington skews me she could sign another statement then she herself could revoke it and so that the language in the statute we thought this out very clearly assists a parent can revoke and so either parent can revoke the appointment and I would anticipate that happening in the event of a change in the lifestyle of the people they chose or a divorce or something something of that nature but we do protect the rights of the parents as a collective and we protect the parent the rights of the parent individually and the other thing that I think is very important about this. This guardianship only springs forth upon the demise of both parents and so if my wife's exceeds me and death why students can't step in because she still there. I'm not seeing any other questions is there anyone in the audience here to speak for or against this bill. Nine representative may very would you like to close for your bill yes I am closed for the bill and I make a motion of do pass is there any discussion of the bill. Representative Barker. Thank you madam chair I just like to say for the record I voted for it last time but I really appreciate the changes you really did think through and it really is really is a good bill I appreciate all that work. All in favor say aye. Opposed say no. The bill has passed thank you members and now we are all that