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

You are recognized to present your resolution. Thank you madam chair. Colleagues during our coronavirus pandemic the governor for many months gave the daily update then he moved to every few days of giving an update for almost all of these updates his interpreter has been AT sign nine eighty. And I'm going to attempt to say eighties surname. Sherman decker. Usually people will sign eighty S. and then they would just move their hand for a long time. I don't think anyone but Eddie himself can can really spell it. But this resolution is to honor any for being the governor's interpreter. For the interest that he has given up for American Sign Language I have never had so many people ask me how can I learn American Sign Language watching eighty really stimulated an interest in the language and his colorful times his easy smile his personality his expressiveness all of that combined said this is just to honor any for what he did for the deaf community during the pandemic. And I would moved are the eighth out. Are there any questions from the committee. We have. A motion. Do pass. Sir is there anyone the audience would like to speak for or against the resolution. I have a motion to pass is there any discussion on the motion. All in favor say aye. Opposed no. Congratulations your resolution has passed thank you madam chair of the committee members. Next on the agenda we have house bill one thousand and six Representative Lowery. Representative Lowery if you will introduce yourself to the committee and I think we're going to begin with your amendment and you're recognized. Yes thank you manage here and thank you Committee. This is an amendment to house bill one zero zero six the bill itself deals with the parent child intrastate relocation Act The Amendment that you should have a copy before you actually the leads language that is on the last page of the bill talking about a shift of The burden of proof. Yeah and instead of states that the court may consider all relevant factors when determining whether or not a change of principal place of residence of the child is in the best interest of the child appreciate your adoption of the amendment. Are there any questions about the amendment. Seeing nine represented Lowery you may go ahead and proceed into the body of the bill okay. I'm sorry we have to it I was thinking without the men together it's been two years okay we will go ahead and adopt the amendment first all in favor say aye. Agence NO. Okay we have a motion and we've already that it and adopted the amendment so represent represent Lowery you may proceed okay and I will be presenting the bill as amended. if you've heard if this sounds like deja vu all over again it is I've been attempting to pass some type of law that deals with child relocation within the custody situation first time I presented it which before aging children and youth several terms back and I had a Amman who Whose husband for whatever reason I didn't know the circumstances and it didn't really matter but he had he was primary custodian and he was moving with the child to Washington DC with his new girlfriend I don't think that they were married at that time and the mom and girlfriend was from Egypt a very nice lady I young lady I knew were she was one of my debate students UCLA but the mom that was here in Arkansas was extremely concerned not only about her lack of ability to be able to exercise her noncustodial visitation rights but also her concerned that the child could be expected could be taken out of the country without her having any recourse on will you move the Mike a little bit closer to sure sorry. So we ran the bill then I think a lot of the. It was a close vote in committee but I think a number of the committee members were just really overwhelmed with her motion she was not able to to keep her composure and and they just did not want to make a decision based on that now the good news of that is that her son is now with her she is the primary custodian the sole custodian here in Arkansas and so that's good news but there's still a lot of situations where relocation is not good news it doesn't end up as good news can I give you I give you one example is my own personal examples one of the reasons why this is something that is so close to me. By the children's mom and I divorced long time ago when when my children were five and three. I was not given any notice that there was going to be a divorce I did notice matter fact I found out driving to work the county Clerk called me and asked me if I wanted to be served or if I wanted to pick up my divorce papers and I said my want. The lady almost started crying so I'm sorry we've been told by an attorney the attorney for your wife that you were expecting this was not well that was the beginning of a whole lot of painful experiences of dealing with whether attorneys in a divorce situation in the custody situation are acting in what is the best interest of the child or even what is in the best interest of harmony between two parents who are going through a very difficult time they may not love one another anymore but they certainly love their children. They love having their children be able to be involved with both parents. I realized that. Though I was very fortunate that my ex wife always stayed in the area stay close little rock and I was in North Little Rock. Not not all noncustodial parents whether it's a mom or whether it's a day at because it's not just universal that the non custodial parent is the father but not all were in that same situation. And. In talking with judges and and one judge that I worked with was judge banned Smith worked with him first in two thousand thirteen when we the legislature adopted the first statutory law that deals with joint custody previous to that case precedent had been set in one case one case where the judge said that the state of Arkansas does not favor joint custody. We were able to change case law the Arkansas legislature is able to check change case law by adopting a policy that says that that because we believe where possible the involvement of both parents is critical to the development that child the state of Arkansas does favor joint custody. So we've adopted that and many lawyers judge Vance Smith this the judge told me that it had made a measurable help yeah I know that there is legislation that I've co sponsored is coming coming before judiciary that would deal with the rebuttable presumption because they're still judges that are not following that case law. But it still does not preempt the issues of relocation. Currently. A. Custodial parent can relocate. Within the state and this is what Jett Smith told me sit there are guidelines that rule regulate relocation from one state to another. But there's nothing in Arkansas law that deals with intrastate relocation that's really what this bill bill is about. Now intrastate location may not have seem like a big deal to a lot of people but you know if you look at look at the extremes and I know many of you drive from out in the state I'm very fortunate you know alleged drive for twenty five minutes away to my home to the capital but many of you have three hour or more trips with that could potentially also be the case for some noncustodial parents noncustodial parents to become involved in their child's life my visitation in those painful I mean I went one night from taking my kids into bed every night to only see in them every other weekend and on Wednesday afternoons I'd pick him up from daycare taken to McDonald's and watch them play in the chicken nuggets or burgers and then take them to their mom. Even that amount if the. Interaction with you your child would be greatly hampered if the child were moved seventy five hundred hundred fifty miles away especially in a case where maybe the parents the two parents are already separated by thirty miles or fifty miles and then imagine a relocation that's another fifty miles for another seventy five miles. This bill ran in the Judiciary Committee last year he had received a do pass it only had to a voice note votes there's two no votes did not choose to roll call it. the only dissent after that was that represented cap came to me and asked me if I would consider several amendments and we talked about those amendments and I said I yes that would be absolutely fine would you mind can I please introduce to introduce owned or all the way over there well okay I'm gonna have to improve my oscillating fan ability here to. Include all of you. Of she wanted to amend that the provisions in this bill would have a go go into place if the move move was fifty miles from the custodial parent's address that has been listed in the custody arrangement she wanted to change that from fifty to seventy five and I said I'll do that and the other was to give incarcerated noncustodial parents sixty days rather than thirty days to be able to file their protest with with the judge and I agreed to both of those I said I will amend that on the city. Testimony before the house the House chamber was. Given by represented cap. That I was in willing to amend the bill. I didn't really concern myself with that because I thought that was just a matter of semantics you know. And I knew that I would get to close on the bill but I didn't get to close on the bill because a motion was made intermediate consideration and I did not get to close. So I'm bringing to you this bill that says that occurred custodial parent if they choose if they are going to re locate. Seventy five miles from the address of that is Said with the court the court maintains jurisdiction over any custody case as long as the children are minors I believe the cut off is less than eighteen years that judge has supervision over that case. Yes current law is that if that relocating parent wants to relocate. She doesn't have to notify the judge she didn't have to go back before the judge. Now I know one of the things that has bogged my bill down over the years is that I also felt like the only way that sometimes this would be called and the court would be if the non custodial parent filed a protest. Sometimes the noncustodial parents not notified until the move is already taking place. And then all the and all the burden of proof falls on that noncustodial parent they're the ones that have has to follow the journey her or hard to treat they're the ones asked to file the court documents and then the burden of proof is on them to prove that this is not in the best interest of the child so I've just been seeking to shift the burden of proof to the relocating parents I have agreed I have had conversations with the administrators also Office of the Courts and representatives of the judicial council and I've agreed to remove provisions about a burden of proof the burden of proof of real it that issue it would still be with the non relocating current but I've been assured that both parents if they are. Your before a judge both parents would be able to give present their case of whether the relocation is in the best interest of the child. so does the of Shantanu of giving you probably a whole lot more background that you then you want it let me just deal with some of the objections that I've heard before one of the objections would be what if a custodial parent say single mom. Wants to relocate because of a better job a better paying job. Okay well I think it she wants to better herself. And I think that's a valid reason. But the non rude relocating parent the noncustodial parent should have the opportunity to go before a judge in pointing out that maybe the increase in pay that that mom is going to get is not going to offset the free day care that the mom has now because there are four grandparents in the immediate area and she's moving seventy five miles away. That that economic incentive should not be an automatic grant grand tour or decision for or or fact of evidence we and there are actually loving grandparents because that's the other thing is whether the grandparents for providing free day care or not the grandparents are also critically involved in that child's life. S. as well as the non custodial parent so seventy five miles okay it may not seem like much but if you're talking about if you're talking about a Wednesday afternoon picking the kids up after daycare taking them to McDonald's but no play in the playground I don't actually during cope with I guess their playgrounds are not open right. But if you want to do that can that non custodial parent. Drive seventy five miles one way over an hour. Spend that time with them and then drive an hour back. What if they're already separated by fifty miles and that seventy five mile provision then makes it a hundred and twenty five miles further away one way. So all this law does all this bill does and this is one of the comments that well all this bill does is make sure that that relocating parent does have to petition the judge. Because the judge should not the judges has maintain jurisdiction over this case they should be notified that the requirements also noted notifying the non custodial parent this is the intent of relocating the provision that you adopted in the amendment just says that the judge may consider all relevant issues related to what is the best interest of the child. determining whether or not to change principal place of residence the child is in the best interest of the child. And that's what we should be considering and I know that's what judges want to be considered what is in the best interest of that child. Is that evidence going to be heard is that testimony going to be heard our our is the non custodial parent and maybe the grandparents going to be given an opportunity to also come and testify or provide evidence of. Their relationship to that child and how it's going to be hampered I think that they would be if this bill is adopted. And does so at this point I I am open to questions. We have questions from members Representative McKenzie. Thank you madam chair I have a few questions let me just start with the first one if and and I'll hop back in the queue Can you compare and contrast what are what are the guidelines right now for interstate versus intrastate watery requiring of parents the card burden proof cost. For intrastate relocation and this is one of the things that that judge Smith I remember correctly he actually testified on my behalf of saying that really the law was silent there really were no provisions now I I do understand and talking with the represent of the judicial council and the ministry of Office of the Courts there have been some court cases there's been some legal precedent established in the last two years since this bill was passed in their in their estimation requires that does some of these things were changed. Raise the standard in my question was then there's really no problem there should not be any problem if this bill mirrors precedent what let's just go ahead codified. not just have it is in the judicial procedures manual but also have a and statutory code. Representative clout. Representative Lowery thank you for bringing this I can imagine the quagmire of issues in a state that's got over a fifty percent divorce right so I know that this continues. for the record I would have been fine with fifty miles by the way my question is this on Page two line twenty five. The late reading that it says attention to change the principal place of residence of a child filed by the re locating custodial parent shall include the following information if known so my question is if known it seems like it's a a paper custodial parent is going to up and relocate that child. That perhaps we're giving them a little bit too much leeway honestly to say. Yes non surely you know where you're going in order to inform the non custodial parent. Right well I I think you know I'm looking here you know one of the one of the references really yes something that probably didn't even take place very much in that is see the telephone number of numbers at the new principal place of residence of the child you know they may just be using cell phone but this says you know phone number at the at the home it's not required but if they're going to do it it may not be known the date of the intended change of principal place may also not be known specific specifically because especially if it is a job change or maybe the it is so that the custodial parent is going to be attending college at the university and they don't know exactly when they're going to be moving there for the start of the school term so I think that that's what that is talking about is that it shouldn't be a disqualifier if they don't have all of this information but I'm sure I'm sure the court would at least want to know where the place of residence is because then that helps establish for them with the seventy five miles threshold has been met or not so I think that that's why it gives that leave leeway of if known. Representative Springer. Thank you madam chair I just have one question why isn't what you're trying to introduce within this bill something that a judge cannot address when the. It issues brought before him initially why isn't this something that can be taken care of at least leave before the court. Well if you're saying initially as in when the divorce case comes before them in the awarding custody we're talking about a relocation after that initial awarding of custody is taking place. it could be addressed it could be put into the order if that's what you're saying could be in placed in the order that if there is a change. That the custodial parent should have to appear back before the court. That could be done but the that is sometimes going to involve cooperation between the parties it's going to a I think it's going to involve good lawyers making sure that the right thing is done and and I'm sorry but I you know I've talked to a number of non custodial parents and said you know my my attorney did not tell me. Of this order of that and I didn't know and I don't have it in my initial order and you know and it's it's same thing about the issues of such a child support you know we change this the child support laws now to deal with income shares okay those things could not have been anticipated in the initial order because we at that time we were just looking at a at a chart so they're dynamic changes that happens sometimes it could not be anticipated when the initial custody order is is put into place. Represented Barker. Thank you madam chair I have a question on page three. I understand. The lengthening of time for incarcerated non relocating parent. But it's a little disconcerting to me that we would give an incarcerated. Non relocating parent twice as long as one who's not. Shouldn't they be the same could they not both be sixty days. With the reason the reason for that is that is a non relocating A noncustodial parent who is incarcerated would not have immediate access to an attorney. And may not even have immediate access for the notice to get to them because it has to go through the vetting process at department of corrections so it gives that extra time for them to be able to be notified to be able to contact an attorney to be able to have a response put together for the court. Follow up manager yes I understand that I'm not asking you to back that one up I'm saying could we not make them both the same so it doesn't. Appear in equitable. And give at least a non Carceri did non relocating parent sixty days as well sixty days for both of them. It is it's possible it it's just that sometimes and one of the reasons why we did not to sixty days in in other cases is that uh members had expressed concern in that that non relocating peer or excuse me that relocating parent should not be held up by sixty days or more for this process maybe they don't have that much time and I think we may have started out with more of an equitable you know this is gone through a number of versions and the we may have started out with the same number and in that to be fair C. sixty days to try to address your point sixty days within what's fair for one is not fair for the other you're telling them that they've gotta wait they can't always they're not always in the position to tell their employer. Well I I can't come take that new job until I find out from the court and that's going to take me sixty days to be able to and there's no guarantee I think from reading this there's no guarantee that they're actually going to be able to get into court in that sixty days so we've set thirty days in terms of notice and thirty two yeah at the time for the non custodial parent to be able to respond back and then. Establish a court hearing. Representative had sent. I think we're getting I'm getting feedback and here they maybe too many Mike still on it if you're Mike is still on and you're not speaking would you turn it off please. read the up there without okay thank you madam chair thank you Representative so I'm trying to understand C. A. and am I think to kind of get you back on what represented Springer was trying to say what about the current system does not allow a non custodial parent to come into court to challenge the custodial parents moving at this juncture what barriers are there in the existing law that we're trying to fix here. The barrier at the the berry at skews me the barrier is that there is no obligation. Currently in law to notify the non custodial parent that the relocation is going to happen. Yet there's no obligation at all but not that not that I know of okay. If they're real follow up real quick man and you're recognized for a follow thank you if there was such an obligation do you think that this would still be necessary. If there was that obligation plus an obligation to notify the court because the court still has as you know they still have jurisdiction over the case and repair and I can I know for sure from for my meetings with judge Smith that there is no requirement that the re locating parent notifies the court so that they can continue to do their job. Okay thank you thank you letter. Represented Fuhrman. First question is is there a cost associated with petition the court to notify them of this change of address. The it would depend on the I guess the expertise of the of the parent of being able to file I mean I'm sure for standard forms would be available but there may be a cost just like just stands there would be a cost in the case of that represent Hudson brought up is if a noncustodial parent wanted to objected to the move they would have to hire an attorney and didn't file at an objection to it. I would imagine that that objection is going to be much more. This constant legalism then a form that you're submitting it to the court that here are the details I I am asking for this hearing the war and you know then the other the other thing is that you they may not ever appeared in Mary may never be a hearing before the judge if the noncustodial parent does not object then the judge is able to to a ward that and say okay I've been properly notified and you can relocate. Follow up yes. So. In your opinion do you think that there is. Try the award this is there enough cases you think that would make the cost that these re relocating parents would accrue like work that you think the judge wouldn't have to see like another cases get turned down to make it worth everybody wanted to move. Have to apply and go through that process. What now I'm sorry I need to back up now when you ever asked a question about cost. Retirement cost to the quarter cost to the individual cost of the individual it seems like if somebody has a plan they're moving yes thirty five miles away for some reason we're adding this extra step is extra costs that's already on top of every other moving expense they're gonna have invest asking if how many. Another person question right is there enough of a need for this I guess how many times have you seen where are heard of where people are moving with you know not gonna freezes at the judge might overturn to make it worth justifying everybody wants to do this have to pay this cost. I go through the process. Will it. Even if it is just a handful of situations. It doesn't raise the costs for anybody else it it just does raise the cost for those individuals but I would say I would contend that even in those cases is just a handful if it's ten fifteen whatever you still we're talking about in many of those cases a loving noncustodial parent he just has visitation that probably is mortified that they don't have any wartime already with their child and now because of this decision that there's no education ride other than did not custodial parent becoming adversarial which I think that's the that's the main thing that we always want to do is to try in a divorce case or custody case B. as nonadversarial as possible if you have someone write the filing an objection just by the sound of that you know you you you're automatically entering into a adversarial situation one of the reasons why this burden of proof issue is something that I agreed to to to not shift the burden of proof is that the judge would hear the case of the route relocating here they would allow rebuttal from the non. The the noncustodial parent but they're going to decide and what's the best interest of the child they're not going to be going back to the original issues that were judicata in the divorce but that really what is best for the child some of that will also change over time because the the children may be older you know they maybe more they may be involved have become involved in sports you know I'd worked with my son's basketball teams down that was not something that even came into our thought when he was three okay but when he started getting of age where he was playing basketball and I was coaching them if there had been that kind of a move seventy five miles away or a hundred miles away it would have greatly hampered the relationship that I had with them and so I I think any time that we can we can keep to parents actively involved in their children's lives all the research and this goes back to my work on Education Committee there a lot of factors that we dial or strong empirical proofs that a child is going to be successful in in education in their learning one of them is having two active appearance having extended family involved sometimes it might just involve the grand Pierre the grandma who's been the day care you provide the day care and she's the one that's reading to the child I thought I believe the judges would want to know whether those influences us positive influencers are being removed from the child's life and way that the and it gets this one factor that may just exist that there's going to be more income in the family. Representative Barker. Thank you madam chair. Are there currently any. Requirement of notification by the non custodial parent if the noncustodial parent decides to move seventy five plus miles away. Now. And I and I think that that would be you know that would end up being something on the non custodial parent that they would make that kind of decision but there's there's not a requirement to the extent that I know of so is it it follow up to read yes thank you. So it is it is it this one's past then it really put an honest on the custodial parent who sings tethered and can't move without going through all of this but the other and if the. What you're saying I'm just like you said in the beginning you know the whole point is to not hamper the interaction with the child from both. Can you explain that to me well and I see where you're going with this restaurant I wish trying to think through the situation where the parents were close enough that one one parent can pick up the other one or they can have a drop off at the local Walmart store but if the non custodial parent moved away seventy five miles or more than that meeting of a mid a mid point is going to be extra cumbersome on the custodial parent of I can't you know I really can't answer of what would be done in those cases I would imagine is. The custodial parent says. You've changed things I'm not I'm I'm not going to drive halfway to meet you eight you're you're talking about a five minute drive as opposed to an hour and a half drive of it would be then up to the non custodial parent in that case if they still wanted to make maintain relationship. To petition the court for change in the custodial arrangement. Thank you. Senator McKenzie. Thank you manager A couple more questions here If I understand this correctly with the custodial parent. If the if the two parents agree in writing first off we have a court order saying specifying that's going to control correct. If there's no court order and the the custodial parent's or amicable they agree in writing she doesn't have she or he they don't have to file this petition call up. I'm thinking about moving you got a problem with it no they must reduce their agreement to this in writing is that correct. I I would think that the custodial parent to relocating here would not have to go to court if there's no objection I've. I believe that there would still be a filing in the court and there should be. As the court retains jurisdiction they they should have all the data that they know that they know is current related to that custody arrangement follow up yes. Sign which I brought my laptop so I keep trying to cram it down here perhaps I read it incorrectly misunderstood I thought we did that you did have a provision in there that said if they agree. An informed in written form then she would not have to file that petition she or he because I'm trying to look at here is a couple of things you hate to see you want when I want to bring folks in the quarter and hire attorneys and take up the court's time if they can agree and get along. and secondly if that is there maybe I'm maybe I missed read that If it's not there in the middle of doing that because what we had a situation where they do agreed in writing or that you. And then. The pair the custodial parent phase fails to file the petition or maybe they don't to recruit running I'm sorry we don't would allow that but the non custodial parent doesn't really isn't a plan on hiring attorney really isn't going to contest it but they don't feel like being agreeable and so each time the custodial parent moves were forcing them to go into court hire an attorney take up the court's time the applicant noncustodial parent doesn't checked. I see what you're I appreciate what you're trying to DO and I want to treat people fairly but I also want to avoid unnecessary costs custodial parent and also unnecessary costs for courses specially the two folks are willing to agree getting well in the reference that you make is on page three lines twenty seven through thirty where it says the non re relocating parent who is entitled to joint custody of a work visitation with the child does not object to the petition within thirty days of the date on which he or she receives notice of the petition and proper service been verified and entered into the record of the court Okay well it doesn't say what. It doesn't say what happens if they don't object so is that your point that you're making try to make several points they're just trying to see if we can't come up with the a path here that avoids. A court visit if the parties can agree. And I understand yes your your argument we would keep the court informed but if the if the if the parties can agree. Do we really want to bring hire attorneys and take up the court's time. In situations where they're working it out. Okay I thank the deer's incomplete wording there it's time a proper service but then it just says entered into the record of the court that is referencing it's intended to reference if there's not an objection that is entered into the record is it is it still is I think it's very important for us to for the judges to retain that record and as it says above that the relocating custodial parent has a continuing duty under this section to provide the information required under subsection B. of this section to the court and the non relocating here and as that information becomes non. The the creek most critical element is notification making sure that that notification is is done to the court and to the non relocating here it's not intended to create an adversarial position in court as we've tried to note here that there are cases where there's no objection and and if there's no objection it should be entered into the record as such. One less follower. So is it is your intent or do you envision that in the city situations words. For R. their agreeable or there won't likely be ECC at contest of this that The the custodial parent would not have to hire an attorney they can just fill out a form and mail it to the court and not. I'm trying to see if we can avoid folks seven of hiring attorney bill for first let me say I am. I'm not an attorney I have stayed at a Holiday Inn express and so I am definitely not going to sit here and be a queue you know have someone accused me of trying to act like. An attorney I'm not so I don't know all the specifications I don't know how cumbersome the process might be in terms of filling out this petition and submitting it whether that is something I mean. There've been times that I have been able to. File petitions on my own but not everybody's capable of that so yes more than likely for that parent to make sure that they had it done they will have to secure an attorney to file that petition for them I can't tell you what that cost would be but I think in terms of full transparency in making that sure that the court has all the relevant information as well as that non relocating parent whose duty their responsibility in terms of being active in that child's life might be hampered and at the end I think it Really. I read something in the Pennsylvania of child custody laws that define that those very interesting it defines a relocation with children as a change in a residence of the child that significantly impairs the ability of a non relocating current exercise. A study all rights in the CWI the key inquiry in determining significant impairment as whether the move will significantly impair the other parent's ability to see the channel children in a manner approaching the ease and amount of time that they had with their children if the other party and not move that's what our goal ought to be I think all of us believe that that's got that goal is. Paramount that we don't want to change that interaction that is appear up happening whether that child is sleeping in the same bed in the same house every night or every once in a while there also at another location and This notification requirement helps us get closer to that DO I wish to I hope that most of these moves will be volunteering. And the record there will be agreement yes absolutely DO but I think we. It's a coming upon us to make sure that we protect the interest of these custodial arrangements. Representative garner. You had your light on earlier but okay you could. Represented the Clerk. Thank members if I could just take a moment when your light is green that means that you're in the queue and the red light means that you can speak. This this equipment is new for most of us so that's just a reminder when you're green you're in the queue to read you can speak Representative Cllr thank you manager. Yes I do totally agree that. Healthy. Relationships with both biological parents is very imperative to a child's well being I totally agree with that stability. Twenty four years ago. I'm married a lady. In a different state. I have children she had children so we had this intrastate issue on both sides. We were fortunate we were able to work it out. As a pastor. For twenty something years I have seen literally hundreds of possible scenarios. Here is the difficulty I see. Enforcement. Court backlogs. There's no way with the time line to propose that a court can turn these around quick enough appeal processes. Second curve what you said. Is there a way to do this. With some type of agreement for between the two parties without bogging down the legal system. I guess that could be done by passing a law that requires that in any initial custody order the language be placed in there that if this custody if the primary address of the custodial parent changes. Beyond a certain distance that the court all that this the the entities the two parties are required to come back to court. Yeah I mean either way you're gonna end up having to pass a law. You're recognized I understand and appreciate what you're trying to do. In a perfect world that would be great we live in an imperfect world. And and I don't know that this gets us to where we need to be for the best interest of the child long term on because unfortunately in many of these cases. The children are caught as upon a power struggle between a broken relationship. In in re exaggerated her aunt passed on down to our children and created generational cycle. Of. So I would just I guess it's a compliment I would strongly suggest let's look at a white to try to get around moving to the court systems because there's so many of the situations are so many of these different scenarios and if it can be worked out between the parents outside the legal system I'm. I think that would be the way to go on thank you represented a clear did you have a question. Yes. Yes I guess the question was would you be willing to change this. To a form of agreement even. With a assigned a mediator. Outside the court system. Well at that point I think you your exponentially increasing the cost of your talking about involving a judge Adlai item or a B. eighty eight I mean you're you're exponentially increasing that and I in in back to the earlier question or statement that you made even if you put it in we passed a law that says that the initial order must. Must shall now one thing that I have learned in working with these judges they don't like the word shall. They don't like us telling them that they shall do something. But the that's the only way that we can prevent the situation you're talking about is to put in here that initial custody arrangement shall include a provision. That says that if there is a relocation so many miles that it has to be and and I guess you could put qualifying language if there's no objection within how do you find out whether there's objection or not you're going to have to involve The court room personnel at some point to find that out you're going to have to have a petition. To get to that point to find out whether did did day or are they automatic and maybe other arrangements have happened you know sometimes these. Seventy five miles may not be a problem if you're talking about a sixteen year old who started driving. And they could you know so it's not just in an automatic that you could put in at the outset there has to be some elements that I think can be brought before a judge where the the judge can say okay well that's a piece of evidence and testimony that I'll take into consideration is that it's really not good impair the ability of the grandparents of the non custodial parent to be involved because the child is of driving age. Thank thank you. Senator Hudson. my light off I have my question answered thank you how did I get everyone's questions. We do have one audience member's signed up to speak. Lauren Hoover from a family law attorney. Is here to speak against the bill. She is the manager G. do you have the witness list already with you because I do this is the only person I have on the this story judge singleton it in top intended also sign up okay if people come forward and and get with the. Get with us we'll put him on this thank you. If you will introduce yourself to the committee and then you are recognized. I'm sorry. Representative would you want him to go just if you'll come around here and talk to us. Okay you don't have to sign in you will just would just recognize you after this witness will call you next thank you. Hi I'm Lauren Hoover and I'm a family law attorney and I have been a licensed attorney since September of two thousand six and I have been practicing almost exclusively family law whether it's domestic relations or probate since December two thousand eight. And I very much appreciate Representative Lowery and his intent behind this legislation a Mister Lowery had to hear from me last session regarding this legislation I'd like to to start about I want to visit about a portion of the bill that's not been previously discussed and a quite that with actually what is happening in practice so there's been an overall goal behind the General Assembly that I fully support to and the Arkansas Supreme Court matter of fact to get away from magic language magic labels labels that we if if you yourselves or your son or daughter or best friend and gone through a divorce you might of heard words like joint legal custody with such and such parent as the primary custodians. You probably also heard language sole custody primary custody a and then judge Representative and I keep a hall is what I want to designate all of you as your honor's because that's normally my court room but the two thousand thirteen amendment that Representative Lowery succeeded in getting past has changed the law profoundly and done so in a really positive way and what I'm referring to is joint custody is favored in Arkansas and as recent as recently as March of twenty twenty of the Arkansas Supreme Court as stated by justice Womack noted this body's intent and when I said that the change allows profound that's not my words as the Arkansas Supreme Court's words so we have spent and I have spent getting away from trying to get the courts to move away from these magic labels how fair is that if you have someone that's called the primary custodian but if the parents split sixty forty time. Does that little bit of difference means that that parent should be able to control everything. What fifty fifty but then someone is called the primary. And so we've seen a development and part from my colleagues and apart from myself that we have fought to get past these magic labels in looking out one what are the parents actually doing. And so with the enactment of the two thousand thirteen amendment and taking those hand cuts off the judges in saying you can award joint custody now without that it's disfavored in the Arkansas Supreme Court as recently as this past or March twenty twenty saying no longer is the circuit court required to dissolve the joint custody because the parents can't communicate and cooperate I mean raise your hand if you're surprised that people getting a divorce might sometimes have difficulty communicating. And that is why joint custody with section I roll for so many years how are you good how are these folks gonna share child jointly post divorce when they can't even agree on the things needed to remain married. But as Representative Lowery has pointed out that when we talk about children who are the product of divorce and I'm a divorced now remarried but I'm a divorced mother of two beautiful sons once a ninth grader that I'll gladly let you borrow every once in awhile and you can take with them greater to a rabbit But. Children necessarily benefit from having both of their parents actively involved in their lives but when you involve the court system through a divorce or through paternity necessarily there is the frustration of having to come see people like me and pay me an hourly rate and deal with having the orders go through and filing the proper motions so the first problem that I have with H. B. ten six is the language at principal place of residence. Principal place of residence is not a term that is used in any of our existing case law or any of our existing statutory law and when I say we're trying to get away from the labels the point is that the labels are where the blood baths occur. That primary designation. That primary designation that used to be the label that people fought over not to the debt that's a little dramatic but at the expense of their minor children I believe Representative the Clark talked about that. Is somebody wanted to be labeled the primary. K. and so when we have to then have this fight about what is going to be the principal place of residence we are creating another Avenue for parents to have to litigate. Because under the at the bill as proposed the principal place of residence is wherever the judge decides it is where the parties agree it is and They're probably not going to agree on that specially if there's going to be these calls and a fax and if this bill only required a parent to notify the other parent of intent to relocate. By certified mail by filing a petition you would have no objection for me and practicality the way that this works is that if someone is seeking to relocate and I'm the same I'm seeking to relocate to Northwest Arkansas so I live in North Little Rock if I sought to relocate to Northwest Arkansas my children's father would be deprived of his midweek visitation IT has his Sunday night visitation IT has and also the opportunities that he has to regularly participate dated day on their activities. If I moved without permission from the court without his agreement I mean content. And so yes is there always a burden on a parent having to involve the court system in terms of expense and cost absolutely but if the notification is simply just required to be sent by certified mail like we do when we request income information that we're entitled to do under existing Arkansas law the number at least notify the other parent that I might have a fight on my hands or maybe we can come to an agreement I forget I believe it was Representative Barker one of the questions that you're asking is about. Can't how do we not involve the court system and litigation costs in best practices is that an order is going to have to be entered. And it's not gonna take much time from the court that the agreed upon order but the order is gonna have to be entered that reflects the party's new agreement if the relocation is not objectionable. Let me back up just a just a few more steps there is no difference legally between an entrust eight relocation request and an interstate relocation request. So we have a couple bodies of law that talk about that really field and sign up for this lecture but it's important. With the growing changes to custody of meaning that more and more times joint custody is awarded and that doesn't have to be a precise fifty fifty sixty forty has been held to be joint custody that cases colistin verses Glisson it's a case that a Garland County. But when we're talking about cases were Joe it's joint custody then this all analysis for the circuit court is if the move is going to require where that fifty fifty timer sixty forty time is no longer feasible the court that relocation would be the material change necessary and then the circuit court will then determine what is in the best interest of the minor children. Stay in hot springs go to Boston stand hot springs go to faith bill means certainly there's a case according the Beacon Kate worked the noncustodial parent actually that joint custody mom chose to move to pay a bill without the children well the kids lived amount home. And that's a that's a hall but in terms of whether I want to move from cave city to file a or someone in the from little rock to Nashville the legal announces still the same. The the Hollins worth presumption is been a presumption that I've worked very hard through case all to get rid of because it's very unfair to the other parent the noncustodial parent and so through Cooper the Cooper case versus the call Clark which and sorry that's hard to say I did that appeal for a box of paper because it was the wrong decision. And for a box of paper and a little bit of burning the Midnight Oil while my client only had it he he had visitation or joint legal custody the mom was given the label of primary but on paper before we talk about all the extra things that the father did on paper he had forty two point six percent of the time with this child based on their split parenting time and then not to mention how involved he was in like Representative Larry about coaching basketball and and coaching sports and being at school events and so in that case we were able to have the Supreme Court say that we're going to look at the realities on the ground. What are the realities and get past the labels so Hollings worth is down to only applying in homes with means that the relocation is presumed to be in the children's best interest and it is rebuttable but off today in real life it's very hard to read but but that now only applies in cases with sole custody or primary custody and when I use that word primary I mean thank you are primarily the person raising the children on a day to day basis because the Fourteenth Amendment of the ninety state constitution you do have a a right a liberty interest to be able to travel and we can't on necessarily impinge on that without having a compelling state interest so I if this bill was only to require what a parent notify the other parent by certified mail whichever. That's fine. I'd say if that parent doesn't notify the other parent and picks up and moves anyway enterprise the other parent of his or her time. They're gonna get a contempt finding against them. There's always going to be a barrier of cost to litigants coming to court because that time make a living but we do have access to justice resources and we do have a lot of forms that are now online but the first blood bath that we create with this bill is. Fighting over what the principal place of residence is specially when the goal of the General Assembly since two thousand thirteen is to get away from this principal place of residence and have the children reside on an approximate in reasonable an equal division with both their parents if we have joint custody who's the principal place of residence. They both are are neither are. And so I believe the intention I've been trying to think who is Representative Lowery trying to protect with this bill. And there are some things we can't protect litigants from because the any job comes up or there's a remarriage and that necessarily if there's not an agreement that necessarily is going to involve court time and resources but I have no problem with the notification. It has been held to be unconstitutional for parents to contract away this Hollingsworth presumption because that the Fourteenth Amendment implications I mentioned but certainly a court could order Hey if anybody's going to relocate pass fifty miles seventy miles whichever it is you got to notify the coroner notify the other if this bill would just say that and that alone. I would support that fully. that would at least give everyone an opportunity I'm the question there is a question asked about are we being too lenient in letting the custodial parent if they don't know the information of where they're moving and all those things like to not have to say it well folks this in the in the in the real world most the time people can and should not accept a job unless they have permission from the court to relocate. Because if they were to accept the job and pick up the kids and move there have been courts there that say well you can move and you have a right to travel but the kids come back here until I hear all the evidence and facts. Okay and so yes sixty days it realistically even outside of a pandemic delegation is not going to be completed in sixty days but when you submit yourself to the jurisdiction of a court by getting a divorce or going through a paternity case then you know that these kinds of things absent agreement are gonna be under the supervision of a court regardless. A. I appreciate the removal of the burden of proof language but when we're talking about joint custody cases and again that sixty forty that goes to not the labels and the degree but with the parents are actually doing the the procedure the process is if I have if it missed if represent of Lowery are divorced and we do week on week off. If I were to pick up and move anywhere whether it's hot springs or Texas I have to file a petition to ask for permission to do so because my move is gonna necessarily deprive him of his custodial time and I will be in willful violation of a circuit court's order subject to all content proceedings and there are judges in the state that will put cuffs on me for doing that and rightly so. There are bad actors regardless of our good intentions and certainly I think a circuit court would certainly take into consideration if someone failed to provide as statutory notice that that's how this bill into looking that you try to do this surreptitiously and without permission and without getting approval from your spouse and that necessarily shows that that parent is not acting in the best interest of the children I think we can all agree about that. So If we get rid of this principal place of residence staff because again I'm gonna then start having to have fights about who is the principal place of residence. And then I'm gonna take all these awesome joint custody cases that I have better by agreement and also ordered by the circuit court and I just have a little background I practice in Bonner county Pulaski County selain County Grant County hot springs county Union County Washita county I'm all over the place and hours every County the same absolutely not but if you add this wrinkle that I've got joint custody where I have figured out a mechanism with an opposing party or court or the court is ordering of how we're going to resolve decision making and now we're gonna now fight over who's considered the principal place of residence if you all thought it was annoying hearing about who gets to sign that burst parent form at school he gets to be that parent in that box and who has to be the secondary contact that they can do what we're doing here there are people that fight about that and I'm just glad they're both their contact information on there so with that if we remove this principal place of residence I submit to you that a petition to relocate or whether it's just a notification of an intent to relocate that would allow others to allow you to see permission to relocate or allow you to seek a petition to deny relocation that would certainly give everybody the opportunity to do so And that's all I have I will be happy to accept or answer any questions that any of the members may have. Members were there any questions for this witness. Seeing nine thank you thank you and then we have another audience member who is here I believe to speak for the bill if you would come forward and identify yourself for the committee. Is there anyone else in the audience that I'm not seeing this here to speak for against. Can't see past that petition I thank you if you will just identify yourself and then you're recognized thank you Ladies and gentleman my name is ham Hamilton singleton. I am a circuit judge. From the thirteenth judicial circuit which is south central Arkansas a six county district I'm president of the Arkansas judicial council. I am here today. Because the Arkansas judicial council has taken a neutral stance from an up posting it's when Representative Lowery to be Burden of proof issue out of this bill there's nothing in this bill that In my opinion is problematic. I can tell you regarding the sixty days for of people who are incarcerated. Or. Your I'm sorry. SO. UP that that tracks rule for her the Arkansas rules of civil procedure regarding someone's. I can tell you that if the parties desire to settle this and enter into an agreed order that they may be moved. They can do that and under the code as it is now they may present that order to the circuit Clerk in this divorce action and do so without paying a filing three. Which which makes a lot of sense and I think you might be revised or. Represented Lowery to Make that difference in your in your bill. But anyway the Arkansas judicial council is taken a neutral stance. And in again I can tell you that. I don't find anything problematic with the bill. Any question. Thank you are there any questions for this witness. Seeing nine thank you. Senator Larry would you like to close for your bill. Yes and thank you I will try to be a more concise than maybe I was in my initial explanation of this I think you and I do appreciate judge singleton coming here and. No that he was not speaking in favor the bill but we have been able to work out some of the language were under the judicial council could be comfortable let me just respond to a couple things were miss Hoover's it it testimony and I think that there was kind of a jumping back and forth between talking about joint custody which as you can imagine with me having been sponsored the legislation to third two thousand thirteen I wish where possible joint custody would be awarded in. But it's not always possible what we're talking about a situations where there is is not a joint custody arrangement yes I would agree there's a joint custody sixty forty and then there's going to be an obligation there may even be a contempt order if one parent is not maintaining the ability of the other parent because you know one of the things that I know some of you are members of Education Committee you know one of the things we have to keep in mind is being able to allow both parents to be involved in the education of their children this is stab version you know what you were told that there is no the the phrase principal place of residence doesn't exist in law will it will. Okay this bill defines it's one of the definitions of what a principal place of revenue residents is and that is extremely critical especially when it comes to school age children. You need to establish what the primary residence is so that you know what school district that the children are in what their attendance zone is but you also have to make make sure that you as much as possible maintain a situation where both parents can participate in that child's education you know I was very I was very fortunate yes my divorce was it was adversarial it was unwanted on my part but I was fortunate that I had an ex wife who understood the importance of the children's father being involved in their educational pursuits so not only did I get my weekend visitations and my Wednesday night McDonald's time but also got to go to PTO meetings I got to go to open houses I got to go to parent teacher conferences but if we allow a parent without notification and that's the critical real critical issue here is that unless there is a prior quarter quarter that primary custodial parent does not have to notify the other parent and they don't have to notify the court. That child's life is going to be affected dramatically I remember my wife calling me and telling me that you know. My son had been involved in the fight at school it really wasn't his fault he was just defending himself but he had been called to the principal's office and she had been called up there we she and I compared notes about what to do to be on the same page and talking with her son we want to do everything we should want to do everything to maintain that type of relationship so I believe that the bill does that I believe it can be done just based on judge singleton's comment it can be done without cost to either party especially if there is if if there's consent between the two parties and if it's necessary no follow up with the administration administrative office if it's necessary for me to add language that specifies that section of the code where it can be done without filing in order I would be willing to eat to add that On the Senate in okay as long as nobody goes to the well of the house and says I I've refused that that amendment I would like to get this moving I know you'd like to get it off your plate as well so thank you so much for your patience and thank you for listening to me in your questions and I would appreciate a do pass recommendation out of committee. What are the wishes of the committee. Represented Bentley. Is that do pass as amended. We have a motion do pass as amended. Anyone like to debate the motion. For against the motion. Hey in that case all in favor say aye. All it can't say no. Then those have that the bill does not pass. Ninety two. I'm just seeing one. Within this. Did anyone else raise their hand that I missed you it's hard to see with this petition. All right thank you the bill does not pass. And members with that of that's the end of our business for today be watching your text messages and emails regarding Monday whether we would be able