MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
June 29, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 9:12 a.m., June 29, 1993, in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mr. Robert M. Sader, Chairman
Mr. Bernie Anderson
Mr John C. Bonaventura
Mr. John C. Carpenter
Mr. Ken L. Haller
Mr. William A. Petrak
Mr. John B. Regan
Mr. Scott Scherer
Mr. Michael A. Schneider
Ms. Stephanie Smith
Mr. Louis A. Toomin
COMMITTEE MEMBERS ABSENT:
Mr. Tom Collins, Jr. (excused)
Mr. James A. Gibbons (excused)
Mr. William D. Gregory (excused)
Mr. Gene T. Porter, Vice Chairman (excused)
GUEST LEGISLATORS PRESENT:
Senator Diana M. Glomb, District No. 1
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst
OTHERS PRESENT:
Mr. Chuck Gardner, Deputy Attorney General, Attorney General's Office, Transportation Division
Ms. Judith M. Allen-Rodriguez, Administrative Director, Attorney General's Office, Crime Prevention Coordinator
Mr. Larry Gilbert, Parent of Abducted Child
Ms. Sharon E. Claassen, Network Against Domestic Violence
After roll call, Chairman Sader opened the hearing for consideration on various bills heard previously.
ASSEMBLY BILL NO. 785 Makes technical corrections to measures previously approved by 67th session of legislature.
ASSEMBLYMAN ANDERSON MOVED DO PASS.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMEN GREGORY, COLLINS, TOOMIN, GIBBONS AND PORTER WERE ABSENT FOR THE VOTE.)
SENATE BILL NO. 470 Makes various changes relating to custody of children.
Chairman Sader informed the committee the prime sponsor of S.B. 470 was Senator Glomb.
Senator Diana M. Glomb, District 1, testified in favor of passage of S.B. 470 which was one of three bills; S.B. 471 and S.B. 472 dealt with missing children who were abducted by one parent away from the custodial parent. A portion of her testimony was contained in Exhibit C.
According to Senator Glomb, enforcing other parent's rights to custody was difficult as it was not currently defined in the law. Upon the separation of parents, children were left without clear documentation as to who would obtain custody of the child. To clarify, Mr. Sader stated in these circumstances there had not been divorce decrees and possibly no marriages. These relationships were defined as out of wedlock, married but not divorced, etc. Senator Glomb reflected on the fact the intent of the legislation focused on the best interest of the children.
Mr. Haller asked if legislation addressed grandparents who took children out of the country. Senator Glomb noted this had not been addressed in the current legislation and might fall under kidnapping or other statutes.
Mr. Chuck Gardner, Deputy Attorney General, Attorney General's Office, Transportation Division, testified on behalf of S.B. 470. He maintained the problems the Nevada Missing Children's Clearing House dealt with were circumstances where children were abducted from custodial parents by parents in relationships where there were no marriages or no divorce decrees. In some situations there had not been any court determinations. The intent was to ensure judicial determination of the best interest of the children rather than allow parents to make the decision themselves. He emphasized the need for legislation which would show parents had to obtain court orders.
Mr. Gardner defined the custody rights in situations where there were no court orders. Provisions which stated joint legal custody were set and it would be codified what had been an assumption. NRS 200.359 made it a felony for parents to abduct children from the other biological parent in violation of court decrees. He noted Section 3, subsection 2, page 2, was a partial copy of the California statute which addressed situations where one parent with a right to the child took the custody from a parent who also had a right to the child and where that parent could be guilty of committing a crime. He maintained this statute was so vaguely written it was seldom enforced. The intent was to provide an enforceable statute where parents could be heard in a court of law and judges could make decisions as to what was in the best interest of the children. At present, when one parent abducted a child from another parent and took the child across the state line, or concealed the child, there was no effective way to get the parent into a court of law to make a decision.
Mr. Gardner noted S.B. 470 was divided into two parts. The first section dealt with children born out of wedlock, the mothers had not married the father, and there were no court orders, paternity or custody determinations. Section 2 would eliminate this problem. The language did not revert back to the Tender Years Doctrine which favored the maternal parents in court ordered custody situations. S.B. 470 gave no presumption to either parent.
Mr. Gardner maintained there were protections built into S.B. 470. He stated in situations where the maternal parent had abandoned the children to the father, courts could not grant fall-back custody to the mother. One provision mandated in circumstances where the maternal parents had abandoned the children for six weeks and had failed to provide financial, personal or economic support, the paternal parents would be granted custody.
Mr. Gardner focused on cases where there were marriages but no decrees. S.B. 470, Section 3, page 2, lines 30 through 33, addressed joint legal custodies pursuant to Section 1 which described joint legal custody in the absence of orders. Children could not willfully be removed with the specific intent to deprive the parent or the parent-and-child relationship. Mr. Sader noted this language was a rewrite of the deleted provisions contained on line 2.
Mr. Gardner referenced S.B. 470, page 3, line 3, which directed warrants would not be issued unless the courts found civil matters, warrants or proceedings would not effectively enforce the rights of the parties.
Mr. Gardner noted the suggested provisions widened the defenses in favor of the maternal parent and broadened the defenses in cases where the mothers abducted the children with the intent to defend them or themselves from abuse. Current law dictated maternal parents could defend charges if they were protecting the children from abuse. Under the present law, mothers were faced with either suffering personal spousal abuse or abandonment of their offspring. For this defense, a 24 hour reporting requirement had been previously mandated. The reporting requirement had been widened to allow reporting as expeditiously as circumstances allowed.
Ms. Judith Allen-Rodriguez directed attention to Exhibit D, available at the research library. She addressed the amount of time before court orders to establish custody could be obtained in order to file missing child reports.
Mr. Larry Gilbert appeared before the committee and testified as a parent of a child who had been abducted by the maternal parent and missing for three and one half years. The child had been located in another country. He emphasized the good intent of the legislation which would protect children involved in custody disputes by clarifying custody decrees. He maintained S.B. 470 was a gender-neutral bill which addressed the interests of the children with the intent to foster contact with both parents.
According to Mr. Gilbert, S.B. 470 did not allow one parent to make the unilateral decision to remove children from contact with the other parent. Section 8 provided defenses for parents who alleged their children were abused. The reporting requirement whereby parents who made molestation charges were mandated to report to competent authorities was essential as it encouraged reporting of abuse to appropriate authorities and allowed for review by competent courts. This provision protected the innocent from false charges. Research had shown parents would raise asperous charges of abuse for defenses against the laws applied to them.
Mr. Regan asked Mr. Gilbert if the State Department provided assistance in returning his child from the foreign country. Mr. Gilbert noted the State Department was only effective in the application of the Hague Convention on Child Abduction which applied only during the first year of the abduction. Unfortunately, in his case, his child had been missing for more than one year and international law allowed for the host country law to apply. According to Mr. Gilbert, the Federal Bureau of Investigation assisted parents searching for abducted children. State laws were extremely important because without felony warrants issued in the state, it was impossible to involve the FBI or the State Department.
Mr. Scherer asked for the definition of "abandonment". He asked where the six week standard came from if it pertained to S.B. 470, page 1, lines 21, 22 and 23. Mr. Garder noted the provisions were not the original draft. The language was the result of a Senate Judiciary Subcommittee which had been chaired by Senator Ernie Adler. The term "abandonment" had been defined as when there had not been substantial, personal or financial care after a six week period.
Mr. Carpenter asked how the provisions contained in Section 1 would assist situations where parents were married and each had joint legal custody of the child and one parent exited the situation. Mr. Gardner replied the effective provision contained in S.B. 470, Section 3, page 2, lines 30 through 33, essentially stated if one parent left with the children with the specific intent to deprive the other parent of his relationship with the child there was a violation of custody. Section 1 addressed situations where parents had joint legal custody and the criminal aspects involved in abduction.
Mr. Gardner focused attention on a the statute which stated "a person with a claim of a right to a child who took the child away from another person with a claim of a right to a child was guilty of a crime". He reiterated Section 3 addressed the violation of the right of each parent determined to be a crime when the child was taken away with the intent to deprive the other parent of that relationship.
Ms. Sharon E. Claassen, representing the Nevada Network Against Domestic Violence, alleged S.B. 470, as it was written, would create more problems than it would solve. She contended the provisions would not address the best interest of the children because the provisions would create presumptions. The provision contained in Section 4 would allow the District Attorney to determine decisions made by the Family Court were not in the best interest of the children. This replaced language in the bill which required, before arrest warrants could be issued, there had to be findings of probable cause the children had been wrongfully taken. She alleged stricter standards were contained in the original language.
Ms. Claassen stated the problem with S.B. 470 was the assumption of custody with the unmarried mother. The intent created two classes of citizens, the unmarried parents and the married parents. She informed, in many circumstances, unmarried fathers established paternity at the time of their childrens' birth; under this bill, paternal parents had no rights to custody because they had not established paternity in court. Ms. Claassen contended the provisions did not take into consideration the factual accounts in the family structure.
Ms. Claassen alleged there was a proposal in S.B. 470 which addressed married parents who had joint legal custody. In most jurisdictions, the presumptions were the parents who were the primary caregivers should have custody and control over the children. She contended there was lack of definition in regard to this. The provision which addressed parents who believed they were doing right by taking custody of their children when they believed their lives were in danger used this as a defense. Under the provisions of the statute, felony warrants could conceivably be issued to parents who moved out of state to their support families.
Mr. Sader noted the law could not provide guidelines which would satisfy and give justice to every situation which might exist. The best efforts expended would be to give presumptions and guidelines for the majority of the cases and recourse to the courts for the others which would give them the rights to bring their circumstances and apply adjudications. He stated those presumptions should be made in a fashion where the majority of the citizens could use the law. Mr. Sader maintained the proposed legislation would address these issues more so than the current law.
In answer to Mr. Anderson's concern, Ms. Claassen noted district courts were utilized in family law as justices of the peace were not in the family loop except in cases where temporary protective orders were issued.
Mr. Haller addressed the Tender Years Doctrine where maternal parent had custody rights to children during custody disputes. Ms. Claassen noted S.B. 470 potentially placed unwed fathers at a disadvantage as it provided custody to maternal parents by operation of the law.
Mr. Bonaventura asked for clarification of the six week abandonment provision. Ms. Claassen stated it was difficult to define abandonment as it would not necessarily fit the definition of the best interest of the child. She contended family court judges should make the determinations after listening to the evidence.
Due to time constraints, Chairman Sader relied upon further testimony to be brought before members of the committee on an individual basis. He informed the committee they would not vote on the bill at this time. He closed the hearing on S.B. 470.
RESPECTFULLY SUBMITTED BY
Jessie A. Caple
Committee Secretary
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Assembly Committee on Judiciary
June 29, 1993
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