Judiciary Committee - Senate
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Bills discussed (6)
| Bill | Title | Sponsor | Status |
|---|---|---|---|
|
HB1058
Act 219
· 4 mentions in agenda, transcript, chapter
Matched: “…k TO AMEND THE LAW CONCERNING CHILD CUSTODY AND VISITATION. HB1058 Dalby TO PERMIT A JUROR TO DONATE HIS OR HER PER DIEM COMPE…”
|
TO PERMIT A JUROR TO DONATE HIS OR HER PER DIEM COMPENSATION AND MILEAGE REIMBURSEMENT … | Dalby | Notification that HB1058 is now Act 219 |
|
HB1057
Act 57
· 3 mentions in chapter, transcript, agenda
Matched: “HB1057 Dalby CONCERNING THE REGISTRATION OF AN OUT-OF-STATE SEX OF…”
|
CONCERNING THE REGISTRATION OF AN OUT-OF-STATE SEX OFFENDER. | Dalby | Notification that HB1057 is now Act 57 |
|
HB1059
Act 58
· 3 mentions in chapter, transcript, agenda
Matched: “HB1059 Dalby CONCERNING THE INTRASTATE TRANSFER OF A SPECIALTY COU…”
|
CONCERNING THE INTRASTATE TRANSFER OF A SPECIALTY COURT PROGRAM PARTICIPANT TO ANOTHER SPECIALTY COURT PROGRAM; … | Dalby | Notification that HB1059 is now Act 58 |
|
HB1185
Act 55
· 2 mentions in agenda, chapter
Matched: “…T PROGRAM; AND TO CREATE A DWI/BWI SPECIALTY COURT PROGRAM. HB1185 Dalby CONCERNING THE JUDICIAL OR ADMINISTRATIVE TRANSFER OF…”
|
CONCERNING THE JUDICIAL OR ADMINISTRATIVE TRANSFER OF AN INMATE TO THE DIVISION OF COMMUNITY CORRECTION. | Dalby | Notification that HB1185 is now Act 55 |
|
SB173
Act 140
· 2 mentions in agenda, chapter
Matched: “…AND MILEAGE REIMBURSEMENT TO AN ELIGIBLE NONPROFIT ENTITY. SB173 Rice CONCERNING THE DEFINITION OF "CRITICAL INFRASTRUCTURE"…”
|
CONCERNING THE DEFINITION OF "CRITICAL INFRASTRUCTURE" IN REGARDS TO THE OFFENSE OF UNLAWFUL USE OF … | Rice | Notification that SB173 is now Act 140 |
|
SB18
Act 604
· 2 mentions in chapter, agenda
Matched: “SB18 A. Clark TO AMEND THE LAW CONCERNING CHILD CUSTODY AND VISI…”
|
TO AMEND THE LAW CONCERNING CHILD CUSTODY AND VISITATION. | A. Clark | Notification that SB18 is now Act 604 |
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Senator Alan Clark
Unverified
0:00
Besides the members that are seated here, we also have two participating remotely. I'd remind everyone, I think it's Mr. Taylor's got it taken care of, but if we don't have seats for you in here with the social distancing that's required in the pandemic, we have a holding room in 207 where you can see what's going on here. We have Chairman Dalby, who is my counterpart in the House,
Chair's House Judiciary, is here this morning. And some of us were going to run some of these bills. But since she's here, we're just going to go to her with House Bill 1058. And I think there may, since I was, no, I think, I don't know if I was supposed to run that or not. but
she may have some others that to help. Representative Dalby, you're recognized.
Thank you, Mr. Chair. And yes, you are on this bill, so feel free to chime in
at any point in time. Members, this is House Bill 1058. It is to permit a juror to donate his or her per diem and mileage compensation to an eligible nonprofit entity. This bill has been amended. I believe I think the amendments have been engrossed. I don't know if I need to present those amendments first. Mr. Chair. Yes. Okay. Since coming from the House end down to the Senate end, we had a couple of comments from the County Association and we incorporated those comments in.
The changes being that we struck are a part of. So if a juror is going to donate their mileage and their reimbursement, their compensation for their jury duty, they'd have to donate all of it. They're not going to split it up. And the other change that we made was the effective date to make the act effective on or after January 1st, 2022. And those are the amendments that have been made from the House end down to the Senate end.
Senator Alan Clark
Unverified
2:24
And they are in the bill as
we see it? It is my understanding they are. Okay. All
right. Would you like to present the bill then? I would. Thank you, Mr. Chair. This particular bill is, I've worked with the Administrative Office of Courts in developing this bill. It's very simple. It allows that the Administrative Office of Courts is going to develop a statewide eligible nonprofit entities
by working with not only the Supreme Court, but with the Judicial Council and the judges around the state. those eligible non-profit entities would fall into five different categories crime victim assistance or counseling services for abused or neglected children shelter for victims of domestic violence services for veterans or legal education for students seeking a juris doctorate degree and the whole concept behind this a lot of times jurors will say oh you know i don't need
money they may not cash their check this will just allow an opportunity that they can check off a box and say instead of sending the check to me send it to this entity and that's really the very simple end of this bill and with that I'll be happy to answer any questions are there any questions from the committee Seeing none, do we
Senator Alan Clark
Unverified
4:00
have anyone from the audience to speak for or against?
We have none. Representative Dalby, would you like to close for your bill?
I am closed, Bill, and I would ask for a motion to pass this bill as amended. Senator
Senator Alan Clark
Unverified
4:14
Hendren has a motion to do pass as amended. Second from Senator Rice. Any discussion? Hearing none, all for the motion. signify by saying aye. Aye. All opposed? Representative Dalby, you have passed your bill. Thank you, members. Thank you, Chairman. Representative Dalby, you are recognized to present
House Bill 1057. Thank you, Mr. Chair. Thank you, members of the committee. House
Bill 1057 is really a bill that's bringing the law in line to what the practice has been currently in Arkansas. What has happened, and this stems from a case that began in Kansas. An individual was found guilty of a crime of which they were going to have to register
as a sex offender in the state of Kansas. They don't register in the state of Kansas. Instead, they moved to Missouri. They register in the state of Missouri because Missouri required them to register. They registered there. Then they moved to Arkansas. Arkansas, ACIC, our Crime Information Center, was having them to register in Arkansas. And they contested it and said, no, because I didn't register in the state that I was first required to register.
You can't make me do that here. And so what all this law does is says if you're required to register because you were convicted in a state that required you to register and you registered in any other state that required you to register, you're going to have to register here. That is what has been the standard practice in Arkansas, but a circuit court reading the black letter of the law followed what it said and not what the standard practice. So this actually brings it back in to the standard practice of what's been going on.
It doesn't create anything new. It's just saying if you were convicted, you were required to register, whether you did
or not, you're required to register here if that's what was required of you originally. With that, I'll be happy to answer any
questions. Senator Ross. I'm sorry if I missed it. Why did
Senator Terry Rice
Unverified
6:37
they not register in Kansas? They just didn't. They just failed to register and moved. It is law?
Yes. They were sentenced and they moved? Yes. They were sentenced and they were required to register. They just didn't register and moved and registered
Senator Terry Rice
Unverified
6:55
over in Missouri. Do you know if it's law in Arkansas that they have to register in Arkansas once sentenced, whether they're moving out of state or not? Yes, it is.
If they're required under our code to register as a sex offender, yes, that is what the requirement would be. Thank you.
Senator Alan Clark
Unverified
7:17
Other questions from the committee? I have a
question. Senator Flowers, you're recognized? Yes. Representative Dalby, I'm curious about a sex offender coming from another state under another court order to register. If there's a provision in the other state, and I think it is here in Arkansas, that a sex offender is evaluated after a period of time in some cases.
So what kind of process is available to determine whether or not someone may be evaluated and removed from the requirement of having to register? Mr. Chairman
I think I can answer that question but Brad Cazart
is here in the room and I think he would probably be a give a much better answer if I may ask him to come forward to answer Senator Flowers question yes Mr. Cazart
Speaker 40
8:35
Chairman Brad Cazort, Director of the Arkansas Crime Information
Speaker 42
8:46
Center. Did you hear my question, Mr. Cazort? I
Speaker 43
8:49
did, Senator, and under Arkansas law, once anybody is registered as a sex offender here, whether they're convicted here or registered here because they move here, there's a provision under Arkansas code under 1212.919 is the provision for a means for somebody to request a court to remove them
from the registry. And so that would apply to people who move here from
another state under a court order to register. Is that what you're saying? Yes. So would Arkansas do the evaluation or if the other state that they have relocated from has a
different standard or evaluation system, which would apply? If they moved, if
Speaker 43
9:32
they're registered in Arkansas, they're going to be assessed in Arkansas, whether they were convicted here or whether they
moved here. Okay. So then what you're saying is Arkansas first would have to get the order from the other
state to determine whether they would even be possible? I mean, does the ordering state not have any say in this or what? Well, Senator, every
Speaker 43
10:05
offender who moves here from another state, we get the conviction records from that state before we register them here. We had the records in this case, but he moved immediately after conviction and never registered there. Missouri made him register based upon that Kansas conviction, but when he moved here,
Arkansas tried to make him register because he was registered in Missouri, but the circuit court determined that
Speaker 51
10:31
no, the strict reading of the law was he was not
registered, actually registered in the state he was convicted in. Okay, well, what I'm trying to get at is if there might be any kind of extra penalty, I suppose, on that offender as a result of moving from one state
to Arkansas? Say in Kansas, maybe certain, he was, I guess you all would take him at the same level that he was assessed in the original state? Not every state assesses, Senator. Arkansas does. but a lot of
Speaker 40
11:10
states do not. And even if they were assessed in another state, they're going to be reassessed in Arkansas once they're here. Kansas would have had the option to charge him with failure
Speaker 43
11:21
to register, but for whatever reason decided not to because he moved away immediately.
Okay. And as soon as they do register here, move here, and are required to register, does Arkansas then assess? Yes. Okay. Okay. So that comes with the notice to the state that the person is here and
Speaker 42
11:45
registered. Once they're registered in Arkansas and registered, they're going to be
Senator Alan Clark
Unverified
11:59
Any other questions from the committee? Hearing none, we have several people signed
up to testify, I believe all four. We have three judges, someone from the Attorney General's office and someone from AOC. All in support. Mr. Chair, they're
telling me that is on another bill that they're signed up for.
Senator Alan Clark
Unverified
12:32
Okay. All right, then. So do we have anyone we've missed for or against on this bill? Seeing none, Representative Dalby, would you like to close
for your bill? I am closed for your bill and would request a
Senator Alan Clark
Unverified
12:57
motion from the committee. I have a motion do pass from Senator Rice, second from Senator Johnson. Any discussion?
Hearing none, all for the motion signify by saying aye. Aye. All opposed? Congratulations, Representative Dalby, you have
passed your bill. Thank you. Thank you, Chairman.
Senator Alan Clark
Unverified
13:18
Thank you, members of the committee. Representative Dalby, you are recognized to present House
Bill 1059. i would certainly let the chair come if you'd like to also
come represent i'm i'm pleased to i am pleased to be here to present house bill 1059 this is the specialty
court bill and really this bill though it's fairly lengthy can be boiled down into certain parts that I think are extremely important. This bill was developed as many of you know I'm looking to see if there's anyone on this committee but the committee the chairman or the pro tem as is in the house the speaker will appoint two members out of the body to be a part
of the specialty court advisory board and that is by statute I have been a member of the board for the last four years and currently what the board has done is they have every year they evaluate the specialty court they're always evaluating the specialty courts in Arkansas to see what would be best for the state and as such this bill after review of what's been going on the specialty court
trying to make it better, because as you know, a specialty court is designed to help someone, whether it's in a drug or alcohol treatment, veterans, juvenile, domestic violence. They're trying to help those individuals get on the right course so that they're not sentenced to go to a to a facility, to an ADC, or into our prison system. It's designed to get them drug rehab,
keep them working, give them the tools to be successful citizens, which I think we all agree is a much better route than sending someone into our prison system. So what this bill does is, first of all, which I think is probably the most important thing, is it allows the transfer of an individual from one specialty court to another. And the best example I can give is I'm from Miller County, far southwest part of the state. If I'm participating in a drug court program in Miller County
and I get a job offer in Baxter County, which is Mountain Home, about as far away as you could get from Texarkana, under the previous guidelines and law, I could not transfer my specialty court supervision up there. I would have to travel back and forth from Mountain Home. Well, that doesn't make a bit of sense. So if Mountain Home has a program that would provide those same activities, guidance, and I could keep a job
and do all of those things, this will allow that transfer. And the judges can work back and forth with each other to make sure that that person becomes successful. I think that's a really key component of this bill, and it's important because I think, you know, we are a mobile society. We know that someone who is in an addictive state often needs to change the people they're around, the jobs that they have, the connections that they have that God may be into there, and so sometimes
that break is really good. So that's one thing that this bill does. I think it's extremely important the other thing that it does it expands the veterans courts and we're seeing that more and more so it's expanding the veterans court program and it's expanding the DWI BWI program and it's adding domestic violence specialty court program which will be new but but we're seeing especially I think in a pandemic
where these are becoming common occurrences and individuals need help. That is the bill in a real nutshell. It has been well vetted. The district, I mean, the circuit judges have looked at it. All the judges around the state have looked at it. I know there are some here to testify as to the benefits of specialty court. I see this bill as one, it helps save money. It gets Arkansans back to being productive members of our society and it allows our specialty courts
under this framework to be able to apply for grants, for funding, to participate in the best practices program of the specialty courts. And it's just an all around good bill for the citizens of the state. And with that, I'll be
Senator Alan Clark
Unverified
18:13
happy to answer any questions. I
have a question. You're recognized, Senator Flowers. Okay. Thank you. And thank
you, Representative Dalby, for your work with the specialty courts. I think they will hopefully result in the kinds of visions we have to make our citizens better.
I wanted to know what I've never seen the BWI.
What does BWI stand for? voting while intoxicated. Okay. Okay. All right. Thank you. Nothing
Senator Alan Clark
Unverified
18:52
else. Senator Stubblefield, you recognize?
Senator Gary Stubblefield
Unverified
18:57
Thank you, Mr. Chairman. Thank you, Representative Dobby, for this bill. Was the COVID virus, was it the one thing that maybe precipitated this bill?
Have you been working on this for some time? Yes and no. I mean, this has been not only a long process, but expedited because of the
pandemic. I think the need became heightened
Senator Gary Stubblefield
Unverified
19:30
because of the pandemic. So there's been
an increased need for all of these services, more so since the pandemic has been in effect. than before?
I think so, Senator. I think people are reaching out maybe more than they did
prior to it. But there was certainly a need before the pandemic. I think anybody here that's handled, and I see a judge sitting over here, handled specialty courts can tell you they probably have more customers than they can take care of. But the pandemic has certainly heightened it. How is the pandemic
Senator Gary Stubblefield
Unverified
20:05
affecting the carrying out of these courts? I'll have to ask someone
else to answer that, if you don't mind.
I have judges here that can answer that because I don't go to a special.
Senator Gary Stubblefield
Unverified
20:16
Because I know a lot of civil cases, criminal cases have been put off because of the pandemic. What
about these cases? If you could allow one of the judges to testify to that, I think they could probably answer that
Senator Alan Clark
Unverified
20:31
better than I can. All right. Any of the judges specifically
want to take that question? I will. So, if you'll have a seat and identify yourself for the record, please.
Ham Singleton
Unverified
20:46
My name is Ham Singleton. I'm a circuit judge from the 13th Judicial District.
Speaker 88
20:53
I'm also the president of the Arkansas Judicial Council. The way the pandemic, ladies and gentlemen, the pandemic has affected specialty courts to the largest extent. is it's taken away the jail sanction that
Speaker 89
21:12
we had before the pandemic. Our jails are simply not taking sanctions.
Speaker 91
21:20
We're getting by. We're making it work without that sanctionability,
Speaker 88
21:27
but that's the biggest problem COVID has placed
Speaker 92
21:36
to get around that? Treatment. There's still treatment, either through CCC or through private
Speaker 88
21:45
treatment. If we have specialty court clients that
Speaker 91
21:50
are testing dirty repeatedly, that kind of thing,
rather than putting them in jail for a short period
Speaker 88
21:58
of time, we'll turn around and put them in treatment for 90 days at CCC or to a private facility such as River Ridge and Texarkana and others around the state. Okay. All right. Thank you, Jim. Thank
Chair
Unverified
22:11
you, Mr. Chairman. That's all I have. Senator Johnson,
Senator Alan Clark
Unverified
22:17
you're recognized. I'm sorry, Senator Johnson. I'm Ms. Senator Rice. He has his hand up when Senator Stauffer. I'll come back to you, Senator Johnson. Thank you.
Senator Terry Rice
Unverified
22:25
Representative Davi, I think you know I value your opinion, and I realize there are
people in the room, but I know if you got an opinion you would be honest with me. Looking over the presiding judge, and the
presiding judge it says is picked, and knowing how some of our veterans are, not that other people aren't, but are
very strong minded people, And when they have a problem, it can be a challenge. Is there any review if there are any concerns or problems of a judge who might be doing
his best or her best, but is not maybe fitted for that specialty role?
Yes. The Specialty Court Advisory Board gets quarterly, or however often we meet, it's typically quarterly. The Chief Justice of the Supreme Court is the presiding officer of that committee. There is, we get printouts as to what's going on.
They keep up, this board keeps up, and there is an individual at the Administrative Office of Courts, AOC, that watches the caseload, watches what's going on. It's really detailed, but it's a best practices. It's a computer-generated program. They watch that, and there are a lot of people involved in the treatment of someone. So if there's not a good fit between a judge and, in your example, a veteran,
and maybe they're just not jihad, then there are ways to get that person into a situation where they can be best benefited. And I think the judges throughout the state who are handling these programs have a real passion for that, and they want those individuals to succeed. So the short answer to your question is yes there is great oversight and there is great desire not only on
the board but i think among our judicial officers that someone succeeds in this program and judge singleton
may be able to address that even further but that's what i have seen and you know i have heard that that
Speaker 102
25:02
judges really have to have a passion to agree to do it to start
Senator Terry Rice
Unverified
25:07
with but i I just knew if there was a challenge there, it sounded like sufficient reviews. And if I can add
something else, Senator, on that, that is one reason why it's so important that they're allowed to transfer.
So if you're in Miller County, maybe you need to go over to Columbia County because you fit better with that judge. And so
Senator Alan Clark
Unverified
25:36
this will allow that to happen. I appreciate the flexibility. Thank you, Mr.
Senator Mark Johnson
Unverified
25:42
Chair. Question. Senator Johnson, you're recognized. We'll have you on the list, Senator Flowers. Okay. Chairman Dahlmey,
this may be a question for the judge, but with these new, I see how they're funded,
but I know there's an initial startup cost to these programs in the courts. You know, I know you have a drug court now, but now then this, you know, the Veterans Court and the DWI and BWI, And those, you know, it looks like the costs are from the court costs and, you know, treatment costs and stuff like that and fees. And is there any concern or is that why we're, you know, so they can accept those federal grants for those, you know, costs?
Part of that, Senator, is so they can accept those federal grants. And I don't want to mislead the committee. We have veterans courts and we have DWI, BWI courts. This is just expanding the scope of them. So I don't want to mislead the committee thinking that we don't have those and those are going to be new courts. The only really new court that will be in this will be the domestic violence court. But yes, we have to have these guidelines. We have to have these parameters to be able to seek out the grant funding.
That's the short answer. And Judge Singleton may have
Speaker 91
27:08
something else he may want to add. It's been my
Speaker 88
27:14
experience over the last 10 years as a drug court supervising judge that we've gone actually from grant monies, which were big time available through BJA and other sources, to most of our needs are furnished through ACC.
Speaker 109
27:35
I mean, they do the probation, they do the assessment, they do the counseling, and they do the day-to-day needs
Speaker 88
27:45
that each of our, most of our drug specialty courts need, whether it's drug court, whether it's Pope court, Swift court. In South Arkansas, we have what's known as alternative sentencing, and they also are there.
So we're able to deliver a lot of the specialty court programs for a limited amount
of money. Thank you, Chairman. Thank you. Senator Flowers, you recognize? I was just going to point out, and I think Judge Singleton just hit on it, that the resources and the personnel that assist with these specialty courts are several.
And whether it's behavioral specialists or other resources within our community, those are provided by the community. And it's a benefit for the community to actually be able to come into a specialty court and provide these services to people that may not otherwise seek treatment or be engaged in treatment.
Would you agree with that, Judge
Speaker 91
29:17
Singleton? Yes, ma'am, I would. But ordinarily, mental health is not part of the treatment
Speaker 88
29:24
package. but it's available. It's available like in our situation, South Arkansas Regional Health has X number of dollars that they donate to all of our specialty court programs. And quite frankly, if we have a mental health problem, all the things we can do in specialty
courts are not going to help us until we get the mental health problem addressed. So.
Senator Alan Clark
Unverified
30:01
Thank you. Thank you. Any other questions from the committee? I'm sitting at the proper time. Seeing none, this is the bill that we have three judges, the Attorney General and AOC signed up to testify for. Judge Butch Hale.
Speaker 118
30:18
good morning chairman judge butel district judge of sherwood be honest with you representative dalby did such
Senator Alan Clark
Unverified
30:30
a good job sir could you move the microphone closer
Speaker 120
30:34
to you please i did need a high chair i'll be honest with you representative dalby did such a good job describing the bill and
Speaker 122
30:41
how it will help us our specialty courts i'll be glad to entertain any questions we
Senator Alan Clark
Unverified
30:50
appreciate you testifying judge and I don't believe I see any
questions thank you Brad and I attorney general's office good morning mr.
Speaker 127
31:11
chair members of the committee my name is Brad and I am the legislative director for the attorney general's office and as was judge hell i will be brief judge dalby excuse me representative dalby did such a good job of explaining the bill
i won't go into detail but the attorney general felt that this bill and that these programs are so important as alternatives for incarceration for individuals that we wanted to make sure we came to the table to voice our support for the program we we think it's absolutely critical that there is an alternative incarceration that individuals that need treatment get that treatment that they're able to keep their jobs keep being productive members of the workforce and just 100 support this bill and i'll entertain any questions
Senator Alan Clark
Unverified
32:00
CHAIR SEES NO QUESTIONS SO THANK YOU MR.
NYE JUDGE GARY ARNOLD FROM ONE OF THE FOUR MOST
Gary Arnold
Unverified
32:22
IMPORTANT COUNTIES IN THE STATE THANK YOU MR. CHAIR MY NAME IS GARY ARNOLD I'M A VERY VERY RECENTLY RETIRED CIRCUIT JUDGE from the 22nd judicial district, served in that capacity for some 30 years, and was fortunate
to be involved in all of the specialty court startups that we have in our district now. I can really add very little to what's already been said, other than to let you know that specialty courts provide a valuable service to our state, and obviously to their participants. if there are any questions that i could answer i'll certainly attempt to do so
Senator Alan Clark
Unverified
33:06
judge arnold i don't see any uh thank
Janet Hawley
Unverified
33:11
you for adding your support thank you uh and
Speaker 136
33:18
janet hawley with aoc good morning my name is janet hawley i'm the specialty courts coordinator with the administrative office of the court. So as Representative Dalby alluded to, most of my job is responsible for the oversight of specialty court programs, making sure that they have adequate resources and funding. I really do not have anything else to add since Representative Dalby
did such a great job, but I
would answer any questions that you may have. I have one
question for AOC. You're recognized, Senator Flowers. Okay. Thank you. Does AOC keep data on entries into specialty court and the exits and any other information concerning progress of the person
who is in the specialty court program?
Speaker 136
34:14
Yes, ma'am. So two parts to that question. The Administrative Office of the Courts keeps a record of court cases through its case management system known as Context. Currently, we are in the process of developing a specialty court case management system, which we have deemed SCALES, and that is being piloted to 20 specialty courts this year. As we have seen, courts going on to the SCALES application more and more have requested to join that application. What it does is provide a collaborative approach for all team members engaged with a specialty court program to access records, input data, and that is a way that we can keep up with participants that are referred to specialty court programs, those that are accepted and to track their progress throughout the program, and then also to keep up with those who are referred to programs and denied for various reasons,
Speaker 141
35:06
whether they don't meet eligibility criteria or do not wish to engage in the program.
In terms of the exit surveys, do you have exit surveys and do you, how long do
you track an individual that's been a participant in the drug court?
Speaker 136
35:25
Typically they're tracked for three years after the either termination or graduation from a specialty court program. But we do intend, and as I said, the specialty court case management system is currently being developed. So one of the intentions is to also include a program exit interview that the participant would answer questions with the respective drug court or specialty court team to provide feedback on those programs.
So it is not in the works currently, but we do intend to develop
that functionality. Well, when do you anticipate
Speaker 136
36:02
getting this system? It's currently in use. Each month we release a new piece of development. So every month, rather than waiting to release the entire application at the end, once the system has been completely developed, we are releasing bite-sized pieces of functionality monthly.
So hopefully we will have the entire system completed by the
end of the year. it. Well, does the legislature get a report of your data?
Speaker 136
36:36
Yes, ma'am. In 2018, there was a specialty court evaluation completed of all specialty court programs looking at fiscal year 2012 to 2014, which was submitted to the legislature and the governor. Well, how do we
get it? Is it, does it come to all members or just the Judiciary Committee members on the
Senator Alan Clark
Unverified
36:57
House and Senate side or what? I don't remember seeing anything like
Speaker 136
37:02
that. It's distributed to the chairs and it's also published on the AOC's website. Oh, well, Mr. Chair, I wish our staff
could get us a link from AOC to that. I'd be happy to send that to you. Thank you.
Senator Alan Clark
Unverified
37:24
Yes, Senator Flowers. That's all. We'll see that we get that done.
Any other questions from committee? Seeing none, Ms. Hawley, we thank you for your testimony. that is all of our witnesses representative Dalby would you like to close for your bill I am closed
Mr. Chair and I would ask for a motion of do pass from the committee motion do
Speaker 137
37:58
pass a motion from Senator Flowers a second from Senator Hendren
Senator Alan Clark
Unverified
38:02
and I will note in discussion that I am so glad that you saw fit to step down here for just a minutes because you did such a better job than I would have done in presenting this bill this
morning I'm glad we have that on the record I'm
Senator Alan Clark
Unverified
38:18
going to capture that and remind you please do you you did a much better job as we we may see when we get to the floor and they start asking questions so you did a wonderful job any any other discussion hearing none all for the motion signify
by saying aye. Aye. All opposed? Congratulations, Representative Dalby, for passing your
and my bill. Thank you, Mr. Chair.
Senator Alan Clark
Unverified
38:45
Thank you, members of the committee. House Bill
1185. I really didn't realize I was going to
present this, but Senator Johnson has graciously allowed me to be on the end of the table for him.
Members, thank you, Mr. Chair. Members, this is House Bill 1185. I need to inquire, did we do an amendment to add Senator Johnson to the bill? No, you're just, okay. I wanted to make sure I didn't need to run that amendment. Members, this is really a very simple bill. Two is in line with our previous conversation about individuals who are addicted, have substance abuse problems with the current practice has been when someone is committed to the
division the department of corrections the division of corrections there is on a judge's sheet at sentencing where they can check off where they go a lot of times let's be honest they just check division of corrections and off they go well Now, sometimes when someone gets to Division of Corrections, they may have been sent there because of a drug issue. They need that drug counseling. Yes, our Division of Corrections does have drug counseling.
They do have programs there. But sometimes that individual is a better fit into our Division of Community Correction. Now, Division of Community Correction, we have one in Miller County. I'm sure some of you have them in your counties also. So that particular Division of Community Correction allows an individual to serve out their time at that facility, and they are given intensive drug, if that's what they're needing, drug, alcohol, treatment, whatever type of treatment they're needing.
This is what they're designed to do. They often have jobs out in the community. They may be day workers. They may be working at restaurants or what have you. at times you may have even seen them we'll see them sometimes in miller county they're out clearing the right-of-ways or creeks or something like that but they have jobs and this is part of of their rehabilitation so what this bill is doing it's just asking to you to approve that
the division of correction have the ability to do administrative transfer so they don't have to go back to court. So there's not that extra expense of a judicial proceeding or whatever, or the time and the expense that it would take when all they need to do is to administrative transfer a person out from the division, from one of the prison systems over to the division of community correction. Does not change the sentence, does not change the terms of the sentence. It's just allowing them to do that. And that's what this bill does. It changes that word or adds
word or administrative transfer. And with that I'll be happy
to answer any questions. Secretary Graves is here to also answer any questions. Senator Sobelfield you're
Senator Alan Clark
Unverified
42:02
recognized. Thank you, Mr. Chairman. Thank you Representative Dobby. Is there
Senator Gary Stubblefield
Unverified
42:07
is there certain distinguishing criteria that determines whether you go to community corrections or the department corrections? If I may ask
Secretary Graves to come and answer that very specific question.
I think I could answer it, but he
Speaker 158
42:31
can be better at it. You want to identify yourself for the record? Solomon Graves, Secretary of Corrections. Senator Stubblefield, yes, yes, there are. the code lays out what are called targeted offenses and those specifically enumerated targeted offenses are the ones that are eligible for community correction placement and a review of those targeted offenses is is actually what led us to present this bill to
representative dalby we have as of october of 2020 1800 offenders who just by target offense which which is the initial factor that makes an individual eligible for a community correction evaluation for placement, 1,800 inmates in the Division of Correction that could potentially be in the Division of Community Correction getting this intensive alcohol drug treatment that Representative Dalby alluded to.
Not all of those would be a fit. criminal history there may be a local objection which this bill still provides for so even if you assume that a third of those might fit we've still got 600 individuals in the division of correction that could be in the division of community correction this gives us an option a subject to rules which we would have to bring back to the legislative council for their review and approval, gives us an option that if we identify somebody who is eligible, we can
flip that name over to the Division of Community Correction for screening for potential placement in
Senator Gary Stubblefield
Unverified
44:05
the Community Correction Center. Could you give them an example
Speaker 158
44:09
of a targeted offense? Residential burglary is a targeted offense. Most drug crimes without an element of violence is a targeted
Speaker 161
44:17
offense. Most non-violent? Yeah, DWI, nonviolent offenses. All right. Thank you, Mr. Chairman. That's all right.
Speaker 60
44:30
Any other questions from the committee? Senator Johnson.
Senator Mark Johnson
Unverified
44:38
Since we have Judge in the room, I've got to let him defend this possible clerical error. That
Speaker 163
44:49
don't ever happen, does it, Judge? Almost
Senator Terry Rice
Unverified
44:53
every day. Appreciate it, Judge.
Senator Alan Clark
Unverified
45:01
Any other questions? Motion at the proper time. Hearing none, do we have anyone from the audience to speak for against the bill? We have none. Representative Dalby, would you like to close for your bill? I am closed for my bill. Thank you. Senator Flowers. Motion do pass. Second from Senator Johnson. Any discussion? Hearing none, all for the motion signify by saying aye.
Aye. All opposed? Motion carried. Congratulations, Representative Dalby. You have passed your bill. Thank you, Mr. Chair. Thank you, members of the
committee. I look forward to being back, I think, but I do appreciate your time this morning. Thank you for being here. Thank you.
Senator Alan Clark
Unverified
46:19
Time, members, in order for
me to run Senate Bill 18, to actually chair the meeting, you need to be in the room. So, although our vice chair,
Senator Flowers, is participating. I don't have a problem with
you appointing someone else. okay participating remotely center
Senator Alan Clark
Unverified
46:45
hindron is the senior member that is here so i'm going to
ask him to come sit in the chair while i go to the end of the table to run sb 18. Thank you.
Representative David Ray
Unverified
47:45
Okay, members, I understand Senator Clark's got an amendment. Do you also have a verbal amendment?
Senator Alan Clark
Unverified
47:51
I do, Senator Hendren. If it's okay, I'm going to remove my mask so y'all can hear me while I'm presenting the bill. The amendment is simply adding sponsors, and I'm going to ask you to suspend the rules because we have two more sponsors, Senator Jason Rapert and Representative Cindy Crawford that were not on the amendment when it was drawn up and so if y'all would don't mind your motion
Representative David Ray
Unverified
48:20
is to suspend the rules for the purpose of adding these three as sponsors correct is that a motion by senator stubblefield second all in favor say aye okay so now to approve the amendment i need a motion to approve the amendment got a motion by senator stubblefield second by senator johnson all in favor
Speaker 179
48:39
say aye amendment is adopted senator clark you're recognized to explain your bill looks like i've
Senator Alan Clark
Unverified
48:50
got lots of amendments and no bill mr chair headed your way you don't
don't have it memorized. Did we just adopt his amendments that added sponsors? Is that what we just did? Yes, ma'am.
And he's saying now that he has other amendments? No, ma'am. Now we're going to
Senator Alan Clark
Unverified
49:23
talk about the bill okay yeah you gave it to me all right thank you mr. chair the really substantive part of the bill is
beginning on line 22 on page one in action for divorce or an action to modify a child custody order there's a rebuttable presumption that joint custody is in the best interest of the child the presumption that joint custody is in the best interest child may be rebutted and then it goes on to say how it may be rebutted the and there's a couple things i'd like to tell you about that
why we're bringing this bill and for me it's about the need for fathers and the raising of children children need both their parents children need fathers they need mothers and it is sad in many cases that sometimes one parent is not fit sometimes because I work very much with the child welfare system sometimes neither parent is fit but it doesn't do away with the fact that children
need their fathers and mothers and I'm reminded many years ago when we had the school shooting at Jonesboro young contractor was in the store a friend of mine speaking to me and he said I hope that neither one of my sons ever would do anything like that this really scares me And I said, Aaron, you don't have to worry about that. It's not going to happen to you. And he said, how can you say that? And I said, if you look at the statistics, and the statistics have continued to be true since that time,
that it rarely happens that you have such a tragedy like that where there has been an active father in the home. And again, I'm not downplaying the role of the mother. My mother has played a wonderful role in my life, but there is a great disparity in our system between fathers and mothers. From the day a couple splits and my watching the system, there is a great difference in custody between the two.
because of that in 2013 this legislature passed a bill passed a law that instead of an action for divorce an award of joint custody is favored and that's in arkansas per 913-10a and i'm reading that from a handout that i gave you that is from the arkansas circuit court judicial bench book domestic relations updated june 2018 page 75 and they're under joint custody you have it but I'm going to read it to
you when in the best interest of a child custody shall be awarded in such a way as to assure the frequent and continuing contact of the child with both parents to this effect the circuit court may may may consider awarding joint custody of a child to the parents and making an order for custody in an action for divorce in a ward of joint custody is favored in Arkansas per the law that we passed. Y'all with me? Now let's keep reading. However, case law, both before and after adoption of code provision
above, indicates that joint custody is not normally favored unless circumstances clearly warrant such action. Did y'all get that? Excuse me, are you reading
from a statute? You referenced a statute that you're reading from. Mr. Chair, if I could finish, but
Speaker 179
53:20
I will answer the questions. I'm trying to follow him. I understand. Do we have a way to get rid of
this document? What document is he reading from?
Representative David Ray
Unverified
53:34
All right. Senator Flowers, let's go ahead and follow the protocol, asking questions and so on. But we are going to email and text you
this document. And, Senator Clark, if you would explain exactly what this document is so that Senator Flowers is clear on it. He said he was reading from the statute, and that's not in the statute. All right, just a second, Senator Clark. What's your
Senator Alan Clark
Unverified
53:51
point of order? My point of order is we have a protocol that we follow here.
Speaker 194
53:56
Right. Senator Flowers is about to follow that protocol. All
Representative David Ray
Unverified
54:04
right, Senator Flowers is participating remotely, and we're trying to get her the information that we have available here.
So we're in unusual times here. If he could just identify
what he's reading from. Senator Clark, while we're sending that to
Representative David Ray
Unverified
54:14
Senator Flowers, would you explain more clearly what this document is? And Senator Flowers, if you just go ahead and ask to be recognized and
try to follow the protocol, I know it's remote and it's more difficult. Are you all
emailing me this, whatever this is? We're going to text it
Representative David Ray
Unverified
54:30
to you right now. So it's going to be texted to you. In fact, let's just wait a second and see
Senator Jim Hendren
Unverified
54:35
if you've gotten that. And while she's waiting, Senator Clark, would you explain what this document is?
Senator Alan Clark
Unverified
54:42
Yes, Mr. Chair. I will again, and I realize that handouts make it more difficult for those that are remote, but we still have to do business. Arkansas Circuit Court Judicial Bench Book, Domestic Relations, updated June 2018, page 75. This is a handbook that the judges use without having to go back to an extensive law
Representative David Ray
Unverified
55:07
library. Okay. Senator Flyers, did you understand that explanation that it comes from the Judicial Bench book?
I understood that, but he initiated his remarks and what he was reading from as if he was reading from the statute. Well, when
Representative David Ray
Unverified
55:26
you'll see the document here shortly, you'll see that the document does reference the statute. and I think that's part of the point he's trying to... Have you gotten the document
Speaker 3
55:34
yet there, Senator Flowers? Point of order,
Senator Trent Garner
Unverified
55:37
point of order, point of order. What's your point of order? Senator Garner, we do not interrupt Senators presenting bills during the testimony. That is grossly inappropriate.
Senator Clark should be able to elaborate on his point, and then she can ask questions during the question and answer portion. Mr. Chairman, we ask this committee hold to its rules and that people participate in one way or the other, follow those
Representative David Ray
Unverified
56:01
rules. Thank you. As I said to the previous point of order, we are going to make accommodations
for people participating remotely to have the same access to the materials that we've had. That is a legitimate request. Senator Flowers, have you received the document yet? Not yet.
She said she's texting it to me. I haven't received a text. We're going to also
Representative David Ray
Unverified
56:24
email it to you. Members, just be patient. Yeah, we're going to allow Senator Flyers to get a copy of the document. Okay, Senator
Flyers, we're also sending it to your email, so hopefully it'll come through in one of those avenues here shortly.
Thank you. Senator Garner, would you like a copy of the document as well while we're waiting? No, sir. I don't like to rudely interrupt the speaker. Let's continue.
flowers just let us know if you receive that document it should be either both texted and
emailed i haven't gotten the text and i'm looking at my uh senate tablet and i haven't received it let me refresh
Representative David Ray
Unverified
58:28
I got it. I have it. Okay. Thank you, Senator Flowers. And again, both
Senator Garner and Senator Flowers, let's allow Senator Clark to make his presentation, then we'll have a time for discussion as per normal. But we'll try to make sure that if there are things that need to be provided to those remotely that we get that. And I guess moving forward, if you have something that you're going to present at the committee, you might let staff know to get it to those remotely in advance.
But Senator Clark, thank you, and please
Senator Alan Clark
Unverified
59:04
proceed. Thank you, Mr. Chair. If everyone is with me presenting, I normally would not ask that question. But I have to interrupt
Representative David Ray
Unverified
59:14
one more time. I was just reminded by staff. If you're going to participate in the meeting remotely, the rules do require that you turn on your camera. So, Senator Garner, if you're going to participate, you need to turn your camera on. All right, Senator Clark, you're recognized.
Senator Alan Clark
Unverified
59:33
The first asterisk, in an action for divorce, an award of joint custody is favored in Arkansas per 913-101. That was passed in 2013. Second asterisk, however, case law, both before and after adoption of code, provision above, indicates that joint custody is not normally favored unless circumstances clearly warrant such action. Third asterisk, joint custody or equally divided custody of minor children
is not favored in Arkansas unless circumstances clearly warrant such action. So, as I have met with judicial counsel and I have met with the bar, and if there was a way to make them happy, I would like to. their chief objection has been not that joint custody is not a good thing but that this bill this law is too strong obviously in 2013 the law was not strong enough because although it
the law says it is the law that we favor joint custody the book says however we don't And what I'm asking you to do, and this legislature to do, is to change the law to where we do favor joint custody. And I'll be happy to answer any questions. I have a question. All right, Senator Johnson, and
Representative David Ray
Unverified
1:01:03
then we'll come to you shortly, Senator Garner. Senator Johnson, you recognize.
And this is Senator Flowers has a question.
Senator Mark Johnson
Unverified
1:01:14
Yeah, gotcha. Just a minute, Senator Flowers. So, Senator Clark, through this presentation, so it's in case history where the judicial branch is favoring unequal treatment in custody. Is that right? Is that, I mean, that's the assumption I would make through this?
Senator Alan Clark
Unverified
1:01:38
That would appear to be the reading of the book, yes. So this
Senator Mark Johnson
Unverified
1:01:44
would make, through legislative action and law, those parties equal in custody rather
than case law? Is that... That's my understanding that the only way to correct case law
Senator Alan Clark
Unverified
1:01:56
is through actual law. All right. Thank you, Senator Clark. Okay, Senator Flowers, you're recognized for a question.
Okay. What Senator Clark just said about correcting case
law through statute, I don't agree with that. I mean, you may change the result of future cases with similar facts, but you're not—I don't think we file bills to strike down a court case retroactively.
But at any rate, I'll just ask my questions. You know, I've practiced in the field of family law and it concerns me several things. One, on line 29 of your bill, where you are making an attempt to rebut this presumption that joint custody is in the best interest of the child, as you put in your language in line 24.
And you say, or at the end of that line, 29. So the other way to rebut the presumption that joint custody is in the best interest, you simply have to have the parties, if the parties, you say, on line 30, to the action for divorce or petition to modify a child custody decree have reached an agreement
on all issues related to the custody of the child, which seems to me that you are creating a situation where the parties alone decide the issue of custody. And without any court review, or determination by the court that the best welfare, that the welfare and the best interest of the child is served. And you also hear with this language being so tight, we have other
provisions of the code that allow a child to testify and give preference under certain circumstances, the age of a child and the ability to, you know, speak up for themselves to say what parent they prefer to stay with. And so that's cut out, it appears to me by this language.
And so we totally abandoned the court in determining what it is that meets
the standard that we've always
had, which is the welfare and the best interest of
the child. And then I was concerned about on page two of your bill, uh, line 12, well, it's line eight through 12. Um, and you add in here, you talk about the best interests of the child, the court should determine. And then you say a parent who is not granted sole primary or joint custody
of the child is entitled to reasonable parenting time with the child unless the court finds after a hearing that parenting time between the parent and the child would seriously endanger the physical, mental, or emotional health of the
child. So I'm wondering, well, how is the court going to assess
that? Are you going to need expert witnesses?
What is it? Are you going to prescribe to the court what they have to have to determine whether the parent and
the child would seriously be in danger physically, mentally, or emotionally. And also, I wanted to know whether you— Senator Flowers, can we do one question at a time? So do you want him to respond to
Representative David Ray
Unverified
1:06:36
that one, and then we'll let you have an opportunity to ask another one? So Senator Clark, you recognize to respond to that question. To the first one.
Senator Alan Clark
Unverified
1:06:47
Which question am I responding to, Sarah?
I'll restate my question for you.
Okay. I'm concerned on page one, the presumption, the rebuttable presumption that you create here. Line 25, you say how
it can be rebutted. And then you have two situations that you create where it can be rebutted. And one is
if the court finds by clear and convincing evidence that joint custody is not in the best interest,
of the child, or, and then you say, or, two, if the parties to the action for divorce or petition to modify a child custody decree have reached an agreement on all issues related to custody of the child. So my question to you is, your intent is to take the court out of the determination of what's in the best interest of the child and best for the child's welfare by that language or?
Representative David Ray
Unverified
1:07:55
Okay, let's let Senator Clark respond to that. And then again, try to go to the questions and then we'll give time for for and
Senator Alan Clark
Unverified
1:08:05
against if we get to that. So Senator Clark, you recognize to respond. No, actually, it's not trying to take the court out. It is not at all unusual for the courts to allow the parties to try to resolve all kinds of areas of dispute, including custody, on their own before the courts make a decision.
And that's simply putting that language in there. And so far, no one's had a problem with that language that says that a father and mother can decide on their own how they would like to arrange custody, and then the court would approve it. And that could be different
Senator Bob Ballinger
Unverified
1:08:47
from joint custody as being one of
the things that not be joint custody. Okay. Senator Flowers, you have another question? Right. I disagree with how he interprets that language, because I think it precludes the court from even reviewing if the parties to the action have agreed to all issues related to custody.
And then the other one concerns the expert or what kind of testimony or evidence would be needed for a court under your proposed bill to determine that the child would be seriously endangered physically, mentally, or emotionally by the parent.
in considering granting the reasonable parenting time. To me, it appears— Okay, so, Senator Flowers, so
Representative David Ray
Unverified
1:09:53
this is your second question about lines 8 through 12 on page 2, and what type of expert advice would the court
use to come to that determination? Senator Clark,
Senator Alan Clark
Unverified
1:10:05
do you want to respond to
that? I don't know that expert advice would be required. So you would leave it
up to the court to determine if a parent would put the child in serious danger, physically, mentally, or emotionally?
Senator Alan Clark
Unverified
1:10:25
I mean, what does that take?
Senator Alan Clark
Unverified
1:10:33
courtroom or what? a parent who is not granted sole primary or joint custody of his or her child is entitled to reasonable parenting time with the child unless the court finds after a hearing that parenting time between the parent and the child would seriously endanger the physical mental or emotional health of the child. If one of the parties feels like that the other party is going
to parenting that child, having that child is going to seriously endanger the physical, mental, or emotional health of the child, then they're going to have to show some evidence
of that. Whether that's expert or not,
I'm going to leave to
the courts. Okay. Okay. And then my last question right now, Mr. Chair, is does your bill and your intent include limiting or just
repealing the ability of a child to state their preference?
under 913-108 of the code, the preference of a child can be considered if the child is of sufficient age and capacity to reason, regardless of chronological age. So are you just wiping that out too? There is a rebuttable presumption that
joint custody is in the best interest of the
Senator Alan Clark
Unverified
1:11:58
child, that both, you know, there was an, you know, when I was six or seven, I would have favored being with my mother. When I was 13 or 14, I'd have favored being with my dad. I needed both my
mom and dad at both of those ages. We'll leave the courts to interpret the language, but there is a rebuttable presumption that joint custody, that having both their father and their mother sharing custody is in the best interest unless they find an overriding reason to find differently.
your additional addition to this subdivision on the first page, if the parties agree to do something related to all issues of the custody, which may
not be in the best interest of the child.
Senator Alan Clark
Unverified
1:12:55
often government does not find what parents do with their children to
be in the best interest of the child but I tend to lean toward the parents and those issues Senator Ballinger you're
Chair
Unverified
1:13:09
recognized thank you Mr. Chair Senator Clark nothing in this bill changes what evidence is presented in court so a lot of times there will be a psychological evaluation both parents, child, all that stuff that doesn't take this out of the equation So the evidence that's presented, either to try to determine what is the best interest of the child,
you haven't done anything to change any of that. So you've switched the burden just a little bit, although, like we've seen, it's pretty consistent with what the courts typically do. But you've just established that as the burden. So things like, you know, if there's a code section out there that specifically references the best interest or the child's preference, you've not, I've looked in here, you haven't deleted that anywhere, so that would still be something that could be evidence considered by the courts? Correct. Right, and so the testimony of the parents, like if they actually have the parents on, people cross-examine, all that, the judge, the court, or if there's a jury,
which typically doesn't happen, they would take all that in, the finder of fact would take all that
Senator Bob Ballinger
Unverified
1:14:08
in consideration. Yes, thank you, Senator Balzer. As we all know, if we had deleted any lines of code, they would be
Speaker 250
1:14:15
in here and have lines through them. All right, thank you. Any other
Representative David Ray
Unverified
1:14:22
questions from the members of the committee? Okay, we have two to speak for and two to
Senator Alan Clark
Unverified
1:14:26
speak against, so we'll start. Yep, Senator Clark. Senator Hendren, those that are here to speak for, I've asked not to speak for. We do have some pretty compelling stories from fathers, but we're going to save those for the House end.
Let those that want to
Representative David Ray
Unverified
1:14:41
speak against it speak here. Okay, so Ham Singleton
from the Judicial Council, if you'll come and state
Speaker 109
1:14:59
you're recognized to speak against the bill. Thank you again. Actually, my name is Hamilton. Gotcha. There's too many
Speaker 88
1:15:09
syllables. Okay, all together. the the Judicial Council does respectfully
object to this bill as it is presently worded the domestic relations code divorce custody visitation the burden of proof throughout that code is the preponderance of the evidence the greater weight of evidence. This bill increases that burden of proof to clear and convincing evidence,
which is just below, by the way, beyond a reasonable doubt that we have in criminal jurisdiction. It's too high a bar. It's a bar that cannot be attained by most lawyers, And it's certainly a bar that cannot be reached by self-represented personnel in domestic relations cases. So that, I submit to you, is something that is a major change in the code from what it is presently.
The Judicial Bench Book, I'm glad you found it. It's a resource. It has no legal authority. We've attempted to visit with Senator Clark on this. We will continue to be available to visit with Senator Clark on this. Our concern is that if
Speaker 91
1:16:48
you focus only on joint custody to such an extent that you can't hardly
get around that cluster of words, then you've taken the focus off what is in the best interest of the child. I submit to you as a judge, any time joint custody is requested by a party in litigation, we have got to consider that. And if we do not agree with that, we have to set out facts and conclusions of law why joint custody would not be appropriate. And
if we don't do that, they're going to reverse us at the appellate court. So we know what we have to do when we have a joint custody situation. Oftentimes, we grant it. But if If it's not appropriate at the time, the higher
Speaker 88
1:17:45
burden of proof is just going to make it impossible for not only the parties, but I submit to you the courts to do the job that they're called to do, and that's to protect the best interest of the child or children.
Representative David Ray
Unverified
1:18:00
Okay. We have a couple questions, Judge, and let me start, I guess, again, as a non-lawyer on this. I'm learning. As I
Senator Jim Hendren
Unverified
1:18:09
look at this judicial handbook, it's a little bit shocking to me as a legislator
Representative David Ray
Unverified
1:18:16
to see, written here, I guess, in guidance for judges that we know the law says this, however, case law says this. I mean, it almost sounds like the judge, this book is saying, we know the law
Senator Jim Hendren
Unverified
1:18:30
says this, but the courts don't care.
Speaker 88
1:18:33
How am I misunderstanding that? because that's the current state of the law. When back in 2013, when this legislature thought that we needed to make joint custody the rule of the land or the
Speaker 91
1:18:50
favored rule of the land, it was not the favored rule of the land. It was in the legislature,
Representative David Ray
Unverified
1:18:57
but it wasn't in real life. But when the legislature makes the law, which supersedes? Case law or what the statute actually says?
Speaker 89
1:19:05
Oh, absolutely. If it's raised, Senator, it's got to be raised. If the issue for joint custody is not raised in the litigation, then there is no
Speaker 88
1:19:15
preponderance or clear and convincing evidence either way that we find joint custody. Okay. That request has to be raised. Okay. I
Senator Jim Hendren
Unverified
1:19:27
would argue that, again, we'll go to other questions, that the legislature has raised that
Representative David Ray
Unverified
1:19:33
in the writing of that statute.
in 2013. Senator Rice, you're recognized for a question. Then I think, Senator Flowers, do you
Senator Terry Rice
Unverified
1:19:43
have a question? Senator Rice, go ahead, and then we'll move
on down there. Thank you, and Judge, I think you heard my line of questioning to Representative Dalvey, realizing that judges are human and sometimes do the best they can, and I'd say most of the time they do. In listening to this testimony, I revert back to what my question was before.
What do you do when you have a case maybe that's difficult and you don't feel like it gets handled? When I have constituents that have come to me, not recently, have come to me and told me that they had, and the reasons they gave, I thought, that judge had to hear that because it's the best interest of the child. And the judge told them to basically
shut up and get out of the courtroom because I felt like he had a bias. I don't know why had a bias. Some people just rub you wrong. And I know that happens to judges. I agree. But you cannot get the best interest of a child if you don't have the
Speaker 263
1:21:12
information. I could not agree with you more, Senator
Senator Terry Rice
Unverified
1:21:15
Rice. And what I want to do is get it. Yes,
you've still got leeway in what I understand in this law. But I would agree with Senator Clark. What happened in the previous years, 2013, evidently didn't go far enough. And so... I
Speaker 88
1:21:42
would welcome your response. Well, I'm sorry. I disagree. I practice domestic relations in all six counties of our district.
as well as criminal and union and probate in all six whenever I receive a domestic relations custody case whether it's original on divorce or it's post decree change of custody and they are seeking joint custody anybody is seeking joint custody
Speaker 91
1:22:14
I will consider that argument I've got to consider that
Speaker 88
1:22:24
argument I am charged by 913 101 to consider that argument and I will address that argument and I will if if
Speaker 91
1:22:34
it appears to be the correct thing to do for a child I will I will endorse it but if it does not appear from
Speaker 88
1:22:44
the evidence to be in the best interest of the child by a preponderance of the evidence, then I would be
neglecting my job to force a joint custody where it doesn't fit. And I will give the reasons why it doesn't fit in my decision. So that then the appellate court can review it, decide it, See if I've made a reversible error on that. But again, taking it from a preponderance of the evidence to clear and convincing evidence is a huge, huge increase in the burden of proof.
You're asking us, you're asking a party to rebut joint custody, not by a preponderance of the evidence, but by clear and convincing evidence. And you won't find that anywhere else in divorce code or in custody
Speaker 90
1:23:47
code or children born out of wetlock. And
Senator Terry Rice
Unverified
1:23:58
just to follow up, agreeing that there has to be leeway for judges, but I think you know it happens.
when you've got an attitude that this is
my courtroom because we've had legislators told they couldn't be involved before and when they will not hear critical evidence, critical statements from family members, whatever, they can dismiss them if they want to. There is no way that I feel a judge can be fair And again, biases happen, clicks happen, good old boy, buddy buddies happen, and people are not able financially to go up the ladder to appeal things.
So I feel like we've got to
do something to make clear what law is and what law is to be followed.
Speaker 91
1:25:07
Thank you, Mr. Chair. Okay. Let me make a quick response to that. Senator Rice,
Speaker 88
1:25:14
I know that we have maybe some judges, hopefully they're in the minority, a very low minority, who have let the road go to their head.
And I'm sorry. I'm sorry that you've had, someone's had that experience. If you have, then report them. I mean, the idea is not to create a law that is going to derail what every other judge is trying to do on behalf of joint custody. Instead, let us do our jobs and report that judge who has not been receptive, who will not talk to you, who obviously on the record has committed some problems.
The very last time I was here, I think, was with you, Senator
Speaker 91
1:26:13
Stubblefield, regarding a judge, a special judge that came in and was creating all kinds of problems. And I agreed with you that that was wrong. They need to be cleaned out. But don't make the rest of our jobs any harder by creating a burden that just cannot be met. Thank you. Okay,
Representative David Ray
Unverified
1:26:35
Senator Flowers, you're recognized for a question.
Yes, and this is to
Judge Singleton. And I would also say not only does it make the judge's job harder, but it may wreak havoc
on the child's life. But my question to Judge Singleton is, concerning that or on line 29, I'd like to know what your interpretation of being able to rebut the presumption is taken away if, as in subsection
two, it says if the parties to the action basically agree or have an agreement on
all the issues related to the custody of the child, does that preclude any further deliberation concerning whether the presumption has been rebutted or can be rebutted? And does it take the court out of determining what's in the
best interest of the child and the welfare of the child.
Speaker 272
1:27:52
Judge Jensen. Senator Flowers, as I appreciate your question, when
Speaker 91
1:27:59
the parties have reached an agreement for custody and visitation, we do our best to accommodate them on that. That does get you around
Speaker 88
1:28:13
the hurdle of rebutting the presumption, but the problem is, is if they don't get there, then the presumption has to be rebutted
by clear and convincing evidence instead of a preponderance of the evidence, which is too great a burden for most lawyers on behalf of their clients and for self-represented clients to even get to. I will tell you that there are judges in this state, good judges, who do a really, really good job that when people bring them joint custody agreements, They will sit those parties down
Speaker 89
1:28:55
and take them through a litany of questions to be sure they understand exactly what joint custody means.
Speaker 88
1:29:03
It doesn't mean, it's not just that you get to see junior school records, it means you have to take an active interest in that child and raising that child and supporting that child. Others, others
Speaker 92
1:29:18
don't. They just, if that's their agreement, they're good with it. but
did that answer your question? Well,
I'm concerned about the court even having the ability to review that agreement with the mindset of determining what is in the best interest of the
child and the child's welfare. I've seen cases where parents can be rather nefarious in terms of their agreement. They may have other motivations for reaching an agreement as to joint custody, which is not always in the best interest
Speaker 89
1:30:00
of the child. It happens all the time, especially when you have joint custody
Speaker 88
1:30:07
and no child support. And the whole thrust is to avoid the issue of child support. I won't challenge
custody, make a joint custody and I won't pay child support. It's a
Representative David Ray
Unverified
1:30:28
problem. It's a problem. Okay, Senator Flyer, is that? Yep. Senator Ballinger, did you have a question? Senator Johnson, you're recognized
Senator Mark Johnson
Unverified
1:30:39
for a question of the judge. Judge, I mean the argument that you've put forward is the preponderance of the evidence in the presumption against the clear and convincing evidence. And it is a higher standard, but
in this bill and in the opinion of many, that equal custody or joint custody should be considered first. And the preponderance of the evidence, tell me how it would be different. You know what I mean? And the child's welfare be better being something besides joint. And that threshold
should overcome the equality and the jointness of that child's care. I know there's good parents and bad parents, but also, you know, through that evidence, you can weigh that. Absolutely. I mean, as a lay person, I see what you're saying, but can you give an example of preponderance of the evidence
compared to clear and convincing evidence? Because to me, the child's best interest is equal partnership
in raising that child, unless there's good reason not to. Let
Speaker 88
1:32:17
me give you an explanation of what clear and convincing evidence is. It is proof that enables you, without hesitation, to reach a firm conviction that the allegation
is true. Without hesitation to reach a firm conviction that the allegation is true. Preponderance of the evidence means the greater weight of evidence, 51 or 50.1% of the evidence. And that is where we are currently in our domestic code, is preponderance. The clear and convincing, again, takes it way higher, way higher.
And I submit to you, it's a burden that I tried to establish, can't be made by self-represented clients unless they're uh wizards and can't be made by most lawyers on behalf of their clients i think maybe the bar is here to address this as well they're really in the business of burdens of proof i'm just there to decide uh they
perhaps could give you a much better explanation than
Speaker 220
1:33:44
association in here shortly. Senator Johnson, you finished? Senator
Senator Alan Clark
Unverified
1:33:49
Clark, you have a question? I do. Thank you, Mr. Chair. Judge, I get more calls on child welfare, custody, et cetera, than everyone in this room put together. And I get more calls from others on those issues.
But on this issue, I get more calls from dads, five to one, six to one. And the calls come from professional dads. They come from policemen. They come from veterans. They come from attorneys. They come from doctors. And they come from all walks of life. And does it surprise you that that many fathers feel like that they're not getting a fair shake in custody cases when it comes to joint custody?
Because are we awarding, if it's not joint custody, are we awarding custody to fathers that often? Or is it going to be mothers or
Speaker 109
1:34:59
joint custody most of the time? You would be amazed at the number of fathers to whom we do award
Speaker 88
1:35:09
testing for all the various reasons. By
Senator Alan Clark
Unverified
1:35:12
amazed, what would be an amazing number?
Speaker 89
1:35:17
I would submit probably Senator Clark in the last four years. I have awarded emergency temporary custody to fathers two to one. I'm not just talking about in your court, and I'm not, I'm
Speaker 163
1:35:32
talking about across the state. I can't
Senator Alan Clark
Unverified
1:35:38
help you. I mean, I can only tell you what I'm talking about.
Because I didn't say I'm getting calls from
Speaker 90
1:35:53
your court. Thank you. If you do, you know my
Senator Alan Clark
Unverified
1:35:56
number. I said I'm getting calls. And I'm not getting, you know, I mean, we come back to that
issue. This is about joint custody, but we come back to that issue. I'm not getting calls from mothers who've been accused of sexual abuse wrongly, who have been accused of other abuse wrongly to get a foot up in the system. It's not that it doesn't happen, but it happens way more on the other side.
And, again, I see a great disparity because if the shoe was on the foot, I'd be arguing for mothers. But the shoe's not on the other foot. I think,
Speaker 265
1:36:31
Senator Clark, if I hear what you're saying, you
Speaker 91
1:36:36
want to have fathers to have a chance. You want fathers to have
Speaker 89
1:36:44
an opportunity to see the custody. That's what this legislature wanted in 2013. And I'm telling you, if they request joint custody and they supply proof of
Speaker 91
1:36:56
the need for joint custody, it's going to be addressed.
And it will be addressed, I mean, clearly. But increasing the burden of proof doesn't make that any better. In
Speaker 89
1:37:12
fact, again, it probably frustrates it much worse than it was before. Thank you, Judge. Thank you, Mr.
Representative David Ray
Unverified
1:37:26
questions. Thank you, Judge. Next to speak against the bill, we have Angela Mann from the Arkansas Bar Association.
So, again, if you just state your name for the record and you're recognized
Angela Mann
Unverified
1:37:50
to speak against the bill. Thank you. Is my microphone
Speaker 284
1:37:53
on? Yes, ma'am. Okay. Good morning. My name is Angela Mann. I'm an attorney here in Little Rock. And I'm here on behalf of the Bar Association. I'm a former chair of the family law section, and I volunteered to work with the legislature this year to help, hopefully pass some laws that can can help litigants in family law courts. In connection
with Senate Bill 18, I have a lot to say. If I say too much, somebody tell me to stop. But the consensus among attorneys is that all oppose the proposed legislation as written. There are three main concerns that I want to talk about. One is the burden of proof, and Judge Singleton has talked about that quite a bit. So I'll try not to talk too much about that, but I do have a little to add. The concern that has not been addressed yet is the fact that there's a presumption at all. And then Judge Singleton and several senators in your questions
have raised this issue, but the bill has written shifts the focus away from the best interest of the child, which is the primary consideration in all custody determinations. Judge Clark, you and I have spoken quite a bit about this bill and other related legislation, and I appreciate your willingness to consider the bar's position. And I hope that we can continue discussions to work something out that works for all of us. I want to talk first about the law the way it is now.
Arkansas code annotated 913101 currently states that joint custody is favored. That law was changed in 2013. The focus of the law as written is the best interest of the child. And the court does have a starting point, which is joint custody, but still has absolute discretion to determine the proper custodial arrangement based on the best interest of the child or children in each particular case. And I want to point out that the statute already has the following language.
In an action for divorce, the award for custody of a child of the marriage shall be made without regard to the sex of the parent, but solely in accordance with the welfare and best interest of the child. Further, when in the best interest of the child, custody shall be awarded in a way so as to assure the frequent and continuing contact of the child with both parents consistent with subdivision A1A above. And to this effect, the circuit court may consider awarding joint custody of a child to the parents and making an order for custody. The same rules also apply in paternity cases, and that hasn't been addressed yet, but Arkansas Code Annotated 910109 addresses paternity.
cases where the parents were never married, and specifically states that subsequent to acknowledgement of paternity by the parties or an adjudication by the court, the court shall follow the same guidelines, procedures, and requirements as set forth in the laws applicable to children born of the marriage and awarding custody, visitation, and support. So any amendment to 9-13-101 would necessarily apply not only to custody of children pursuant to a divorce, but also custody of children to parents who are never married.
Now, I want to talk about a presumption because as a lawyer, this is a big deal to me. So what is a presumption and why is a presumption of joint custody not in the best interest of children? Black's Law Dictionary defines a presumption as a legal inference or assumption that facts exist based on known or proven existence of some other fact or group of facts. A presumption shifts the burden of production or persuasion to the opposing party who can then attempt to overcome the presumption. So a presumption is, it's not just a starting place
of joint custody. It assumes facts that don't exist or may not exist. A presumption of joint custody assumes that joint custody is in the best interest without any evidence whatsoever that either parent is fit to have custody. And as I stated at the beginning, presuming that joint custody is best for all children, shifts the focus away from the children. This hurts the Arkansas children. It hurts Arkansas families. And in my opinion, it hurts good parents and bad parents. It creates increased litigation if we always, if joint custody is presumed to be the
best thing in every case. Best interest is just not something that can be assumed. Judge Singleton talked to you all a little bit about how he would determine best interest of the children And adding a presumption, it makes judges assume that joint custody is in the best interest and takes away that decision making from the courts. Let me give you some examples. The presumption in the statute as written would assume that a drug addict mother should have joint custody.
It would assume that an abusive father should have joint custody. It would assume that an absentee parent have joint custody. What about children that have been raised by their grandparents? It assumes that mom and dad, not grandparents, should have custody. It assumes that it's in the best interest of children to have joint custody when one parent lives, you know, two counties away. It assumes that joint custody is favored in situations where one parent may not have a home. One parent may not have electricity.
It just, it has no exceptions. It starts by requiring the court to assume that joint custody is best. And we do have presumptions in our domestic relations law. And as Judge Singleton mentioned, these presumptions are triggered by a preponderance of the evidence. Arkansas Code Annotated 913-101-C and D provide a presumption that it's not in the best interest of children
to be placed in the custody of a parent who is engaged in a pattern of domestic abuse or who has been registered as a sex offender. And to get to that presumption, the standard of proof is preponderance of the evidence. So not only is that somewhat disjointed with the proposed amendment to the statute, it's also a completely different standard, a more appropriate standard of preponderance of the evidence. And more importantly, I want to address, Senator Clark has talked quite a bit about the bench book,
and y'all have asked lots of questions. As a lawyer, I've never read that. So I read the laws that y'all write. I read the case law as the Court of Appeals and Supreme Court interpret those laws. And I don't read that. And perhaps that needs to be changed. But the bench book is not the law of the land. The statutes and the case law are the law of the land in Arkansas. And Arkansas courts have recognized that joint custody is favored. And they have interpreted that statute as amended in 2013 as a profound change in the law.
I want to talk about Pace v. Pace. It's a 2020 Arkansas Supreme Court case, and I'm going to quote the Supreme Court. In addressing joint custody, the Supreme Court states, We note first that in 2013, the General Assembly amended Arkansas Code Annotated Section 913101 to announce that an award of joint custody is, quote, favored in Arkansas. Previously, case law held that joint custody was not favored, unless circumstances clearly warrant such action. This change in the law is profound.
the parties are no longer obligated to maintain a careful balance of cooperation to stave off a judicial dissolution of joint custody arrangement. And this law has spawned a change in the approach that courts take as manifested in Hoover v. Hoover, which is a 2016 Court of Appeals case, where the Court of Appeals affirmed a circuit court's decision to lessen conflict by modifying the contentious provisions of a custody decree rather than scrapping the joint custody arrangement. And in practice, courts are doing that.
In my practice, I practice primarily family law. My office is in Little Rock, so the majority of my cases are in central Arkansas, although I do practice around the state. But courts are doing what Senator Clark desires with this proposed legislation. Courts are already starting with joint custody. Like in Hoover, courts are awarding joint custody even where people can't get along. Courts are awarding joint custody in cases where the parties can't even be in the same room. I've seen orders where courts award joint custody and specifically make it to where the parties don't even have to discuss decisions regarding the children.
They have the children half the time. They each have about 50 percent say, but they are never in the same room as each other. So courts are going out of the way to make joint custody work, but it doesn't always work. And courts need the discretion to do that. I don't know the facts of each and every case. I understand the concerns of the constituents that have reached out to Senator Clark. I have male and female clients with the same complaints.
But we have 30 new judges in the state of Arkansas that were sworn in this month. Most of them are young in their 40s and 50s. They bring a different approach to the bench. Um, uh, so we can't take away their ability to determine what's in the best interest of children. We can't legislate away the issues that people in the past have faced. Um, uh, we can't, and I, and I think Senator, uh, Johnson may have, may have mentioned that, um, we can't, we can't enact legislation to retroactively fix things.
Um, uh, the statute, we especially can't legislate away, uh, decisions from prior to 2013 when the statute was amended. The burden of proof, I want to briefly talk about that, although I think Judge Singleton did a good job addressing the burden of proof. But as Judge Singleton said, clear and convincing evidence has no place in domestic relations law. You don't see it in the domestic relations statutes. The only time that I'm aware
of where you see a clear and convincing evidence standard as it relates to children is when we're talking about terminating parental rights. It's such a high standard that most custody cases, probably 99% of custody cases are not decided by that margin. Most people, as Judge Hamilton mentioned, pro se litigants will never be able to meet that burden. Litigants with attorneys will likely only be able to meet that burden with expert witnesses to prove, to, to, to meet,
to meet that burden of almost, it's almost without, beyond a reasonable doubt, which that's a term that I think people are more familiar with. Clear and convincing evidence is just one step down from that. And, and so, you know, we have to have expert witnesses. We have to have custody evaluations by PhD psychologists. We have to have psychiatrists. We have to have everybody under the sun come in to testify to meet this burden. It's just too high. It's going to increase
litigation. It's going to make it to where we end up with, I feel like it's going to handcuff judges where they have to give joint custody, where they otherwise would have never considered it. One thing that I noticed from this discussion with Judge Singleton is this statute presumes that everybody wants joint custody. When we file a divorce complaint, when we file a paternity case, when we file a modification, we ask for what our client wants. There are a lot of people
who don't want joint custody, but this statute presumes that that's in the best interest of their children. Now, I think it's important to make sure that the courts are starting with joint custody, and I think they are, and perhaps we need to amend the bench book, but I don't think we need to overhaul the entire statute and change the burden of proof, change the way custody cases are tried, change access to the court system even.
um sometimes one or both parents aren't fit um uh and while i agree with with with senator clark that that fathers are important they're not the most important thing in a custody case the most important thing in a custody case is the child uh and and handcuffing the judge by saying both parents are fit both parents get joint custody at the starting position with this extremely high burden uh only hurts children um now i took a couple of notes and so if i repeat myself or go backwards, I apologize. Senator Clark mentioned that the bar's objection is that
the statute is too strong. And I think that that's not exactly accurate. Our position is that the statute goes too far. It ties the hands of the court. It imposes a super high burden. And the statute as written and as currently interpreted by the courts already does what everyone in this room, I believe, wants. Let's see.
Speaker 286
1:51:13
Okay. I will answer questions at this time if anybody has any.
Representative David Ray
Unverified
1:51:18
Okay. Thank you, Ms. Bannon. I'll start with a similar question that I asked the judge, because again, are
you familiar with this handout that Senator Clark gave out with the judicial benchmark? I'm looking at it now, Senator. So if you look under joint custody, the second, third, and fourth paragraphs are just, I have a hard time reconciling that because I think what I hear from the courts is this is an overreach and going too far with the law. But when you look at this handbook, it looks like the courts are basically saying the legislature
said this, but nah, we're not doing that.
Speaker 294
1:51:54
And I understand that concern. And this concerns me too as an attorney. I think,
Speaker 284
1:51:59
you know, in an action for divorce, an award of joint custody is favored, and that's the way it needs to be left at that. Everything below that appears to be an interpretation of the law prior to 2013. So you can understand
Representative David Ray
Unverified
1:52:13
why it promotes this type of response when you see a handbook issued to
Senator Jim Hendren
Unverified
1:52:18
the courts basically saying, we're going to set aside
what the legislature said the priority was.
Speaker 284
1:52:24
Yes, Senator, and I do understand that concern. This, fortunately, this is not the law in Arkansas. The law in Arkansas is the statute as amended in 2013 and the case law interpreted by the Supreme Court as recently as 2020, stating that we start with joint custody. And so this bench book needs to be rewritten. It's wrong. But
Speaker 298
1:52:45
that doesn't mean that we need to completely overhaul the entire system. Okay.
Representative David Ray
Unverified
1:52:50
Senator Johnson, you've got a question.
Senator Mark Johnson
Unverified
1:52:53
and speaking and speaking earlier you know in this process you said you know we've tried joint custody in cases and and said you know it's clearly not working so in my interpretation that meets the burden if it's clearly not working then you've met the burden of clear and convincing evidence to yourself as a judge. It's clearly not working. But I don't understand the thought
that equality in parenting, no matter what the circumstance, whether it's a drug abuser or whatever, because that's, you know, that's pretty clear. There's one better than the other possibly. You know, and that would be clear and convincing to me if I was a judge in that case. Now, I have never sat there, but, you know, my black and white don't run into gray very often, so, I mean, that may be the difference between me and, you know, the practice of law, but
there's a, you know, a discipline and a responsibility in all justice, And whenever that equality in parenting is taken away from one, that responsibility is taken away from that side, and that parent may never question itself to better itself if always put in a position of 20% custody.
But where is the, if that responsibility is laid on that parent at half, you've got to take care of this child you made, and it's your responsibility now. Do you see the bearing of that helping that individual become a better parent and become a better citizen and help our whole situation through that responsibility
rather than just discipline and say you're 20% good or 10% good or two hours a week. that responsibility of presuming that you are going to be 50% responsible for this child you created, help create. Do you see the weight of that? Because I felt it whenever I became a parent. But I prepared myself,
and I was responsible along the way. But if we continually remove responsibility whether it's in this situation or others you're not making better people and better responsible citizens through their own self-correction so you know I feel like there should be equality in the beginning and you say that's what you see but that clear and clear and
clear and convincing evidence may be clearer to me because I hadn't been muddied. You know what I mean? If it's clearly not working and that parent has continued to be a bad parent, then I feel like that's whenever the judge can step in. And, you know, the parent that is seeing that, the other 50% says, you know, his knucklehead is clearly not working. So it comes back before the judge and then he can he can clarify that but in the beginning that first step should be towards
responsibility and let them take that on and see if they become better people okay that was
Speaker 284
1:57:04
a lot so I'm going to try to address uh as much as as much as I can and if I miss something just ask again okay um most importantly um nothing is black and white in law everything is gray And I'm sure you've heard that tens don't marry ones. That's what we're
Speaker 286
1:57:22
dealing with in court. You don't have a model parent who has no flaws
and then somebody who is very clearly a bad parent in every case. They're usually both kind of around the middle. But one is definitely better. But it's not definitely better without hesitation. You know that's
Speaker 284
1:57:40
the right decision every time. um uh and and so clear and convincing evidence it's just too high of a burden and we don't see it anywhere else in our family law statutes because it because it is too high of a burden it ties the hands of the judge and you know while I I appreciate your goal of making responsible
people um that focus isn't on the children the focus has to be on the best interest of the children not the best interest of a parent and a parent who gets the child 20 percent of the time and says, fine, I'm not going to deal with that, then that's not in the best interest of the child to make that parent be with the child 50% of the time. And if we have to start with joint custody and wait until that parent fails and the other parent can go hire a lawyer and go back into court, we're increasing litigation and we're harming the child in the process. Potentially.
Representative David Ray
Unverified
1:58:32
That'd answer your question, Senator Johnson. I appreciate your position. Okay. We don't have any other questions. I
have a question. Senator Flowers, you're recognized for a
question. Thank you. I agree with the witness in terms of this bill, if it became law, limiting the ability of the court to determine what we've always had as our standard,
which is the welfare and the best interest of the child or children. And I would like to know if you agree that this bill would create more contradictions in the law and might make some provisions that we have in the law,
such as the child's preference to
live or be under the awarded, their custody awarded to either
parent, their preference would be not considered necessarily, particularly in the event of an agreement between the two parties as to all the issues related to custody. And so I'd
like for you to respond to that, the preference of the child, as well as this line 29 and the or at the
end of that line that
the presumption can't be or is not going to be rebutted if the parties agree? Do you believe that that would take out the authority of the court to review custody at all? All right.
Speaker 286
2:00:36
Senator Flowers, I'm going to address your last question first because I think it's the easiest. And I think that courts do have the ability to accept agreements by the parties.
Speaker 284
2:00:51
And I think that this statute as written is missing one important piece, which it needs to be approved by the court. Exactly.
That's my point. The court doesn't have to approve this agreement with that language or. That's correct. And so I think
Speaker 286
2:01:07
that that needs to be amended if the parties agree to something other than joint custody. That can rebut
Speaker 284
2:01:14
the presumption, but it must be approved by the court. The court must find that that agreement is in the best interest of the children.
Courts don't always rubber stamp a party's agreement. I don't think that they should because sometimes people agree to things that aren't good for children. So I think there's an easy solution to
Speaker 286
2:01:34
that concern by requiring that the courts approve an agreement by the parties after
Speaker 298
2:01:39
finding that it's in the best interest of the children.
Senator Alan Clark
Unverified
2:01:44
Okay, well, we don't have the easy solution before us. We are looking
at this bill as it's written, Senate Bill 18, with that language.
And so my question is, would that word or take away the court's ability to even review an agreement to determine whether it's in the welfare and the best
interest of the child? Senator Flowers, I
Speaker 286
2:02:14
think that it might. The statute does say may. So I think the court would still have discretion under the statute.
I do see your concern, though. It does create uncertainty. And that's my concern with a lot of this bill, that it creates
Speaker 284
2:02:31
a lot of uncertainty. It appears to tie the hands of the courts in ways that probably aren't intended. And I think the effect of that is going to be increased litigation. It's going to put kids in situations that aren't in their
Speaker 301
2:02:45
best interest without proper consideration. Exactly. And
then the other question was concerning the preference of the child.
Sure. Whether that would be limited by this bill. Your Honor,
Speaker 301
2:02:59
or not Your Honor, I'm sorry. I'm so used to being in court.
Speaker 286
2:03:03
Senator, I think the preference of a child is a factor that the court can consider, which would probably remain a factor that the court can consider. I know some courts, we don't have a magic age in Arkansas, which I like. And I think that a lot of children do have strong preferences. And I think that a lot of children do have reasons for wanting to have joint custody.
Speaker 284
2:03:29
I mean, children, in my experience, they don't want to choose sides. And children do tend to say, I want to be with both parents more often than not. I'm not going to say it's 80% of the time. But more often than not, when you ask a child where they want to
Speaker 286
2:03:43
live, they say, oh, I like both parents. I don't want to pick. But I think that that's a factor that should remain in there. I think there are other conflicts that are created by the presumption, though, including the presumption that it's not in the best interest of the child to be placed in the custody of a parent who has committed an act of abuse or domestic violence or is on the sex offender registry, because we only have to prove that by a preponderance of the evidence.
Speaker 284
2:04:10
So if we can only prove domestic abuse by preponderance of the evidence, but we have to prove that it's not in the best interest for joint
Speaker 286
2:04:18
custody by clear and convincing evidence, then those two things, they don't mesh. And you might meet the burden of proving domestic violence or the sex offender status by a preponderance of the evidence, but not be able to meet the higher burden. Thank you. Thank you. Okay,
Representative David Ray
Unverified
2:04:38
Senator Stubblefield, you're recognized for a question.
Senator Gary Stubblefield
Unverified
2:04:40
Thank you, Mr. Chairman. I just want to say, Judge Singleton, if I knew that every judge was as noble and virtuous as you, I could understand voting against this, but I have witnessed with my own eyes that not every judge is as noble and virtuous as a lot of other judges. There are some bad judges out there, I know, because I've sit in the courts and
I've watched their verdicts. In light of that, Mr. Chairman, I want to make a motion for immediate consideration. Okay, we don't
Representative David Ray
Unverified
2:05:09
have anybody else to testify or any other questions, so I'll accept that motion for immediate consideration. All in favor
say aye. Aye. Any opposed? Okay, so now the motion is to do pass as amended. Do we need a motion for do pass as amended? Got a motion, a second. All in favor say aye. Aye. Motion carried. All opposed? No. Okay, motion carried.
Representative David Ray
Unverified
2:05:57
got a request for a roll call vote. And Senator Garner,
Speaker 217
2:06:10
you're going to need to turn your camera
Speaker 310
2:06:15
on for the vote. Senator Stubblefield, Senator Rice, Senator Blake Johnson, Senator Blake Johnson votes
aye senator garner yay yes senator garner votes yes senator ballinger senator ballinger votes yes senator flowers no senator flowers votes no senator clark uh senator clark votes yes and i'll be an eye so the motion has
Representative David Ray
Unverified
2:06:48
carried seven to one thank you mr chair thank you committee
Speaker 315
2:07:11
I've worked at 10 o'clock on this issue, so I'd love to have you on the way to do that. Let's talk about it. Good to see you. Thank you. Appreciate you. No problem.
Senator Alan Clark
Unverified
2:07:35
Okay, if I can find my agenda. the last bill
today is senate bill 173 center ross thank you
Senator Terry Rice
Unverified
2:07:56
mr chair and committee this is not a new thing so i think we'll be very brief If
we've got questions, we can go into as much as we need. The critical infrastructure mentioned on SB 173 was originally brought about by need for concern, protection for electric power generation.
As the ones that have been here know, we have amended this to petroleum refinery, chemical and rubber manufacture, petroleum chemical railroad operating, which I carried last session, and a communication tire facility after that. Because of the need and where we are in society, the technology of drones, unmanned aircraft systems, as they're called, the food processing and manufacturing facilities, I believe is critical to add to this.
and we've also amended before I brought it to committee, also to correctional and detention facility. And we have here, if you want to see, one of the actual drones that were used at one of our correctional facilities to try to get stuff in, if the committee wants to see that, and if the committee wants to have testimony. I won't belabor this any longer.
It's pretty transparent. Take any questions. Senator Hendren wants to know if we can fly it around. If you've got the control, we'll let you outside. I'd just like to see it. And I'm talking about it. Props are always good. Please go ahead and break it. If you can see that, you
know, we've all seen these things. And, you know, it's amazing. You think of the technology. where they're going to be dropping your packages at your homes and all well
there you everybody's one step ahead and they're doing other things too and again the world we live in now we definitely want to protect our food processing manufacturing and also I think this will be a good prevention for correctional detention facilities thank you any questions from the committee hearing none do we have
Speaker 110
2:10:34
okay hearing none do we have anyone to
Senator Alan Clark
Unverified
2:10:40
testify for against no center ross would you like to close for your bill close for my bill appreciate it do pass okay we've got a motion from central flowers
yes motion do pass your pass so don't feel second any discussion hearing none all for the motion signify by saying aye aye all against motion carried congratulations center ross you
have passed your bill thank you committee was that amended before okay that was amended before it came to the committee okay it was amended before it came to the committee uh all right
we are done and i think if this is wednesday a lot of us have another meeting that we're late to so we are adjourned
Agenda
Call to Order
SB18 A. Clark TO AMEND THE LAW CONCERNING CHILD CUSTODY AND VISITATION.
HB1058 Dalby TO PERMIT A JUROR TO DONATE HIS OR HER PER DIEM COMPENSATION AND MILEAGE REIMBURSEMENT TO AN ELIGIBLE NONPROFIT ENTITY.
SB173 Rice CONCERNING THE DEFINITION OF "CRITICAL INFRASTRUCTURE" IN REGARDS TO THE OFFENSE OF UNLAWFUL USE OF AN UNMANNED AIRCRAFT SYSTEM.
HB1057 Dalby CONCERNING THE REGISTRATION OF AN OUT-OF-STATE SEX OFFENDER.
HB1059 Dalby CONCERNING THE INTRASTATE TRANSFER OF A SPECIALTY COURT PROGRAM PARTICIPANT TO ANOTHER SPECIALTY COURT PROGRAM; TO CREATE A VETERANS TREATMENT SPECIALTY COURT PROGRAM; AND TO CREATE A DWI/BWI SPECIALTY COURT PROGRAM.
HB1185 Dalby CONCERNING THE JUDICIAL OR ADMINISTRATIVE TRANSFER OF AN INMATE
TO THE DIVISION OF COMMUNITY CORRECTION.
Adjournment
Documents
| Title | Type | Pages | Source |
|---|---|---|---|
| Agenda — JUDICIARY COMMITTEE - SENATE AND HOUSE, Jan 27, 2021 | Agenda | 1 | Official source ↗ |
Speakers
Senator Alan Clark
Unverified
Representative Carol Dalby Chair
Unverified
Senator Terry Rice
Unverified
Senator Stephanie Flowers Chair
Unverified
Speaker 40
Speaker 42
Speaker 43
Speaker 51
Speaker 58
Senator Gary Stubblefield
Unverified
Ham Singleton
Unverified
Speaker 88
Speaker 89
Speaker 91
Speaker 93
Speaker 92
Chair
Unverified
Speaker 102
Senator Mark Johnson
Unverified
Speaker 109
Speaker 118
Speaker 120
Speaker 122
Speaker 127
Gary Arnold
Unverified
Janet Hawley
Unverified
Speaker 136
Speaker 141
Speaker 137
Speaker 158
Speaker 161
Speaker 60
Speaker 163
Representative David Ray
Unverified
Speaker 179
Speaker 194
Senator Jim Hendren
Unverified
Speaker 3
Senator Trent Garner
Unverified
Senator Bob Ballinger
Unverified
Speaker 240
Speaker 243
Speaker 250
Speaker 254
Speaker 263
Speaker 90
Speaker 272
Speaker 220
Speaker 265
Angela Mann
Unverified
Speaker 284
Speaker 286
Speaker 294
Speaker 298
Speaker 301
Speaker 237
Speaker 217
Speaker 310
Speaker 315
Speaker 110