MINUTES OF THE meeting
of the
ASSEMBLY SubCommittee on Judiciary
Seventy-First Session
February 23, 2001
The Subcommittee on Judiciarywas called to order at 1:30 p.m., on Friday, February 23, 2001. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. John Carpenter
COMMITTEE MEMBERS ABSENT:
Ms. Barbara Buckley (Excused)
GUEST LEGISLATORS PRESENT:
Ms. Merle Berman
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Myra Sheehan, Nevada Trial Lawyers Association (NTLA), Reno, NV
Ann McCarthy, Nevada Trial Lawyers Association (NTLA), Carson City, NV
Lucille Lusk, Nevada Concerned Citizens, Las Vegas, NV
May Shelton, Consultant, Washoe County
Assembly Bill No. 34: Revises provisions governing granting of rights to visitation with child to persons other than parents of child. (BDR 11-193)
Chairman Anderson opened the subcommittee hearing on A.B. 34 and mentioned the reference materials gathered for committee use:
Assemblywoman Merle Berman, sponsor of A.B. 34, approached the witness table to discuss the reasoning behind the proposed amendment to A.B. 34. She said the amendment had been prepared because the “highest standard” had not been used in the original bill. The amendment used the highest standard, clear and convincing evidence, and was prepared with more continuity than the original bill. Ms. Berman asked if she should respond to e-mails.
Chairman Anderson said Ms. Berman did not need to comment on the e-mails. It was his belief that “the intent of this legislative body was to take up the question and try to fix the Nevada law. Although we do not find it flawed relative to the Troxel decision in its entirety, but we hope to make it clearer in terms of what the rights of the parents are, what the best interests of the child may be and the state’s right to make sure we are not abandoning the children of this state, in terms of our overall responsibility to look out for their interests. It would be nice to believe that every parent was a perfect parent, but I know from my day-to-day job (as a teacher) that is not a case in point. It is a tragedy, but it is reality none the less.”
Ms. Myra Sheehan, President of NTLA, supported the proposed amendment to A.B. 34. The first reason for the amendment was found in Section 1, Subsection 2 where a residence requirement was needed to be consistent with wording already present in Section 1, Subsection 1(d).
It should be understood that the Troxel decision was not law, just persuasive. By using the Troxel decision, the second reason involved an effort to clarify and create a constitutionally sound statute, so when applied and possibly challenged, it would not be overturned in the Supreme Court.
Ms. Sheehan reported the first change was to add “suffer harm” language in the amendment under Section 1, Subsection 4.
Chairman Anderson restated his understanding of Subsection 4 to be the person requesting visitation must prove that the child would be harmed if visitation was not granted.
Ms. Sheehan answered “yes.” She clarified the statute did not talk about a family with two involved parents. It would be a situation where either or both parents would say “no,” or one of the parents did not exercise their visitation. Chairman Anderson wanted to discuss that particular situation at a later time.
What Chairman Anderson asked to do was discuss the “easy one” first, where only one person was saying “no.” He reiterated a scenario that included a divorce, a non-custodial parent, and visitation, which had been divided by family court. Now the grandparents, the non-custodial parent’s parents, wanted visitation rights, but the custodial parent refused. This meant the grandparents had the burden of proof that denying visitation would be harmful to the child. Ms. Sheehan answered in the affirmative.
Chairman Anderson asked if that was a “new higher standard” than existed currently in law. The parent was the primary determiner and did not have to defend his/her position, but the grandparents or third party had the burden to prove that they were right and the parent was wrong.
Ms. Ann McCarthy, also of the NTLA, answered “yes.” The statute assumed that a “fit” parent made decisions in the best interest of their child. It should be understood that there existed just so many pieces of the pie and the court had already made a decision on visitation; this might cause even greater difficulty for the court. It would be necessary to have a psychological evaluation of the child done by an expert to determine exactly how the child would be harmed if the grandparents’ relationship with the child was severed.
Chairman Anderson asked if the committee moved forward with the proposed amendment, would a standard be established that had not currently existed statutorily and the presumption would be for the parent if the custodial question had already been resolved?
Ms. Sheehan stated this was a very complex issue because if you had two fit parents, married or not, that were in agreement that someone should not have visitation, this statute would not give anyone the right to come before the court. This statute only gave a person the right to come before the court if there was a noninvolved or dead parent and there was only one parent left.
Chairman Anderson said scenario number two would be where a child was in a two-parent situation and both parents agreed that someone should not have visitation. For a variety of reasons, the grandparent, or other third party, had a relationship with the child, but the parents said “no.”
Ms. Sheehan related information regarding a recent case, Stewart v. Stewart, that said when two fit parents said “no;” that overrode everything else. This statute would not change that law. A.B. 34 would be for those situations where one parent would not be considered fit. One parent, who might be a drug addict, was not involved with the child’s life, and the other parent was so angry that he wanted to eliminate the other side of the family. It would be unjust or unfair to remove that entire side of the family just because of the errant parent.
Chairman Anderson asked if that meant Ms. Sheehan was proposing an amendment to the amendment. Ms. Sheehan again answered “yes.”
Ms. McCarthy said the intent of A.B. 34 was to encourage a parent to set aside personal feelings and look at the best interests of the child.
Chairman Anderson clarified that an amendment to include Stewart v. Stewart was not needed in this bill because it had already been established as a precedent for Nevada courts to follow. Ms. McCarthy concurred.
Ms. McCarthy then brought up the possibility of even greater harm happening to the child if the court “forced” visitation making the nonconsenting parent even angrier. Ms. McCarthy suggested wording to include “greater harm would result to the child if the visitation was not granted, than the child would suffer if visitation was granted over the objection of the parent.”
Chairman Anderson asked would not the change in language raise the “fence” to a “wall”—a high monument to cross. Ms. McCarthy agreed.
Chairman Anderson then asked if the fact that the wall was “too high” might in itself result in additional appeals in the Supreme Court. Did this become an impossible burden for grandparents to overcome?
Ms. McCarthy stated that if a case was not based on the “clear and convincing evidence,” the state might not have a compelling interest in overcoming the parent’s right to decide.
Chairman Anderson asked Ms. McCarthy to define the difference between harm and “greater” harm. Pain would be based on the circumstances of the victim.
Ms. McCarthy said that she did not want to kill the bill, nor did she want to make it impossible for third parties to have visitation rights. What was clearly needed would be a clear and convincing standard, as well as something that said the child would experience harm. It would be necessary to go as far as possible without creating a barrier where no third parties in Nevada could get visitation. Then the balancing act between all parties could happen in the court, not in the statute.
Assemblyman Carpenter asked the witnesses to comment on another real world example. What kind of evidence would grandparents need to bring in order to overturn a parent’s desires?
Ms. McCarthy responded the kind of evidence brought to court would have to be from a psychologist that would testify to the court that the severing of the relationship would be almost as though the grandparents had died. If the child had a strong, ongoing relationship with the grandparents, the grandparents could be viewed almost as dead, leaving the child to feel cut off. This psychological severance would be the harm. There had been circumstances where this was the case. But Ms. McCarthy did not believe that A.B. 34 would make the standard too high.
Ms. Sheehan reminded the committee that A.B. 34 dealt with the constitutional rights of parents to make decisions in the best interest of their children. If a fit parent was to make a decision in good faith, then that parent had the superior rights and the Constitution protected those rights.
Chairman Anderson read Section 1, Subsection 6 (a-j) that describes ten conditions the court would consider when granting visitation to a third party. He asked if these qualifications raised the threshold of performance for the parent. Ms. Sheehan said this gave the parent a voice. What the existing statute lacked was it did not give any weight to a fit parent’s desire or determination not to allow visitation.
Assemblyman Carpenter asked if that was the main purpose of the Troxel decision. Ms. McCarthy said that it was impossible to make the statute fit every single person and child’s needs. One last suggestion was to include the words “potential harm” in Section 1, Subsection 4.
Chairman Anderson believed that wording would extend the question into the future and allow consideration to include a long-term effect.
Chairman Anderson asked if Mr. Carpenter or Ms. Risa Lang, Committee Counsel and bill drafter, had any problem with the wording “potential harm”. There was no objection.
Ms. Lucille Lusk from Nevada Concerned Citizens had further comments on the amendment language. She believed that consideration of the harm if visitation was not granted, as well as if visitation were granted over the objections of the parent, were very important aspects of the bill. She requested that new language be added to Section 1, Subsection 5(b) that would include “the child will suffer greater harm if right to visitation is not granted to the party seeking visitation than the child will suffer if visitation is granted over the objection of the parent.” Then the current Subsection 5(b) would become 5(c). This would be a balancing test in the purview of the court to consider both sides. She had concerns with adding the word “fit parent” in the place of the existing “parent” because this would put the parent on the spot to prove their fitness before the rebuttable presumption takes place.
Chairman Anderson said the only amending language considered so far was to Subsection 4 where the words “potential harm” had been added. There had not been a change to add the word “fit.” He asked Ms. Lusk to repeat again the suggested language for Subsection 5(b). He then asked Legal Counsel if this language would result in a redundancy of a standard that was already set in Subsection 4.
Ms. Lang said it might cause a problem. Subsection 4 contained a rebuttable presumption and then stated how to rebut the presumption. This new language would seem to conflict with that.
Chairman Anderson verified if this suggested language was included, it would create additional constitutional conflict that might make it more difficult, if not impossible, for the statute to be applied.
Ms. Lang responded that it would be awkward with the language in Subsection 4 that told you to rebut the presumption; and then in Subsection 5 the court could grant visitation if the party seeking visitation had rebutted the presumption. This presented another different standard that conflicted with Subsection 4 that could be difficult for the court by saying that rebutting the presumption was still not enough.
Ms. Lusk wanted the judge to have the ability to consider other factors when granting visitation. A simple showing of harm on one side, without the allowance of the other side showing corollary harm, would be a problem. It should be very important that both sides be able to show what harm they believed would come into play in the different scenarios, which would give the judge the ability to balance it.
Chairman Anderson said the parent’s right was already protected. Subsection 4 placed the burden on the grandparent, or third party, to show that the child would experience “harm or potential harm” if visitation was not granted. He asked if Ms. Lusk was trying to establish an additional parental right.
Ms. Lusk believed once the presumption was rebutted, it would allow the court to consider all other factors. If the parent was not allowed to show corollary harm, then again the parent’s right had not been upheld. This would not be an additional right, but instead the opportunity for both sides to participate after the presumption was rebutted.
Chairman Anderson asked if Ms. Lusk assumed because the statute did not directly consider the parent’s opportunity to speak in court, the assumption would be the parent would not be allowed to speak to rebut the statements. Ms. Lusk responded not that they did not have the right to speak in court, but one side was given the task to show harm, while the other side did not have a specified opportunity to show there might be even greater harm.
Chairman Anderson disagreed with Ms. Lusk’s statement. He said the party seeking visitation must show “clear and convincing evidence.” He asked Ms. Lang, the bill drafter, if an affirmative stand regarding the parent’s right to respond to the evidence was necessary.
Ms. Lusk rephrased her suggestion. She wanted the court to have the ability to consider evidence on both sides – the harm that may result if visitation is denied, as well as the harm that may result if visitation is granted when the parent vigorously objected. She felt the court should have the responsibility to consider the harm on either side.
Ms. Lang said to include such wording would be a policy decision for the committee. If the committee decided to proceed, she would find the appropriate place for it.
Assemblyman Carpenter believed what Ms. Lusk wanted was in the bill already. The responsibility of the parent was already at a higher standard. According to A.B. 34, the court may grant visitation; the court was not forced to grant visitation.
Chairman Anderson assured Ms. Lusk the bill drafters would review the language and a determination would be made as to whether to include it or not.
Ms. May Shelton, Human Services Consultant to Washoe County, testified in the original hearing with comments from Judge Scott Jordan, Family Court in the 2nd Judicial Court District, and Elizabeth Farley, a deputy district attorney. She again relayed their support for A.B. 34 and the proposed amendment.
Chairman Anderson asked if there were any others who wished to testify. There being none, he stated the information gathered would be shared with Ms. Buckley. A motion would be premature until the additional language was reviewed.
Chairman Anderson said one more meeting of the subcommittee may be scheduled to determine what would be done with the two proposed amendments as prepared by the legal division with the additional language at Subsection 4 including the wording “harm or potential harm.”
Ms. Sheehan approached the witness table and added the amendment should include the wording “fit parent.”
Chairman Anderson then remarked the hearing was not closed for that was the very concern that Ms. Lusk had previously voiced. He asked Ms. Sheehan where this potential amendment would be placed in A.B. 34. Ms. Sheehan said any place the word “parent” appeared should read “fit parent.” In line with the Troxel decision, there was a presumption that a “fit” parent made decisions in the best interest of the child, and she believed that our statute should express such a statement as well.
Chairman Anderson asked if she did not believe current laws within the state of Nevada already established the definition of a “fit” parent. Ms. Sheehan said the only statute she was aware of that dealt with the fitness of a parent involved welfare of children dealing with neglect and abuse.
Chairman Anderson asked if the judge would not take that into consideration when making the determination of custody. Did not the parent seeking custody of a child bring forth those types of arguments to prove their case? Ms. Sheehan agreed a parent would bring forth that information when a determination was made as to who would be the primary custodial parent of the child.
Chairman Anderson was curious as to why that issue would need to be raised in this amendment. This could endanger the bill itself, unless Ms. Sheehan believed the Troxel decision forced its inclusion.
Ms. Sheehan hypothesized how this would affect a child whose parent had “legal” custody but not primary physical custody.
Ms. McCarthy countered if the inclusion of the word “fit” could jeopardize A.B. 34; it was her belief that the bill would still work without it.
Chairman Anderson said the committee did not want to second-guess the Supreme Court, but the bill would come under further scrutiny in the Senate as well.
Assemblyman Carpenter restated that to include the word “fit” would result in having to include definitions of a “fit” parent. What would be a “fit” parent to one, might not be a “fit” parent to another.
Ms. Sheehan withdrew her request to add “fit parent” to the amendment. It was not the intention of A.B. 34 to put the burden on the parent to prove they were fit. The amendment already had a presumption that the parent had the right to determine visitation.
Ms. Lusk believed the previous discussion had captured her concerns.
Chairman Anderson clarified if this amendment was to be adopted as suggested, NRS 125C.050 would state a person could not pursue visitation rights unless a parent had already denied that visitation and the presumption would exist that the parent had the right to make that determination. The burden of proof moved to the party seeking visitation, who had already proven they had an ongoing relationship.
Chairman Anderson closed the subcommittee hearing on A.B. 34.
Meeting adjourned at 2:55 p.m.
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: