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Child custody bill has public hearing

Brandon Moseley

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Wednesday, the Alabama House Committee on Children and Senior Advocacy held a public hearing on the Child Equal Access Act which would change Alabama’s rules on child custody so that the court prepares a detailed parenting plan in child custody cases and that the presumption is joint custody if both of the parents are fit.

Senate Bill 266 is sponsored by State Senator Larry Stutts, R-Sheffield, with ten Senate co-sponsors.

Senator Stutts is a practicing obstetrician in North West Alabama.

Stutts said that having a relationship with both parents is essential to a child’s life and that in his practice most of the pregnant teens he has seen over the years did not have a father in the home and did not have a strong relationship with their fathers.

“Parental equality should be the starting point for every child custody case,” Stutts said in a statement. “Ultimately, it’s about the child having a right to equal time with both of his or her mother, father, and extended family, provided that both parents are responsible adults.”

Stutts said that nothing in SB266 mandates 50/50 custody for either parent, and does not take away a judge’s discretion to award sole custody. The bill simply creates an equitable starting point and asks the judge to provide a rebuttable presumption as to why the other parent was not granted joint custody.

John Eidsmoe is a retired Judge Advocate General, a pastor and the Lead Counsel with the Foundation for Moral law. Eidsomoe said that numerous studies show that if both parents are involved in a child’s lives it generally leads to better outcomes.

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Eidsmoe said that in the 17th century the father had all the parental rights.  That gradually changes and in the 19th century the belief was that the nurturing ability of the mother was necessary for the development of the child.  Modern studies have come to stress the importance of both parents.

Rachel Hackworth with the Alabama Coalition Against Domestic Violence spoke against the bill.

“I have concerns about this bill would have on victims of domestic violence,” Hackworth said.
“Children who have experienced domestic violence are not just witnesses but victims themselves

Stutts said that, “If there is any inkling of domestic violence this goes out the window.”

Nicole Clark is an attorney and Guardian ad Litem in Clarke County. She spoke in favor of the bill.

Clark said that currently, when you go to court the non-custodial parent only gets visitation for 48 days out of the year.

“I understand the domestic violence concern,” Clark said. “This bill addresses fit parents. If both parents are fit that is where we start. Nothing in this bill mandates that a judge has to give joint custody.”
Mike Sherman is a Judge in Mobile County.

“I have been an advocate for both parents, but I oppose this bill,” Judge Sherman said. “This is going to encourage more litigation, because you are going to have to overcome this bubble.”

Sherman said that when the state had at fault divorce attorneys would litigate trying to prove abuse or adultery in order to prove there was cause for the divorce. Sherman said that he feared that this would similarly lead to more allegations of misconduct and more litigation in child custody cases.

“This statute takes discretion away from the judge,” Sherman said. There are cases where there are two fit parents, but it is better for the child if one parent be granted custody.

Roy Davis is a retired police officer who spoke in favor of the bill.

“Children, they need a father,” Officer Davis said. “The men and boys I arrested for crimes 99 percent of them have no daddy.” Fatherless children makes more criminals.

State Representative Jim Hill, R-Odenville, is a retired Judge and the Chairman of the House Judiciary Committee. He came to the public hearing to speak against SB266.

Hill said that he objected to the requirement that “There shall be a rebuttable presumption.” Hill said that he opposes anything that ties the hands of judges in these cases.

“Is this bill better than the last one they presented? Absolutely,” Hill said. “Is it a good bill? Absolutely not.”

Hill said that the Alabama Law Institute (ALI) has written a bill rewriting the child custody section of the Alabama code.

Hill said, “Dr. Stutts, I will file the ALI bill, if you will introduce it in the Senate. It will not create a rebuttable presumption.”

Matt McMullen spoke in favor of the bill. “The most valuable thing is time,” McMullen said,
Kenneth Paschal

Kenneth Paschal is the President of the Alabama Family Rights Association (ALFRA) and a retired U.S. Army First Sergeant. ALFRA is advocating for SB266.

“The primary goal of the Alabama Family Rights Association is to educate the public and government officials concerning the importance of equal involvement of both fit parents in a child’s life,” Paschal said in a statement. “As the nation seeks answers on how best to make schools and communities safer, how to combat the increased violent crimes; ALFRA believes the long-term solution is to prevent that that includes protecting a child’s right to love both parents.”

“SB266 does not change existing laws which would be applied to provide protection to victims of abuse,” Paschal said. “We’re 100% okay with including an amendment to clarify the intent of this legislation. Such as: “a finding by the court that domestic violence and abuse, as defined in Alabama Code – Section 30-3-133 — Determination raises a rebuttable presumption that the child or children reside with the parent who is not the perpetrator.”

The bill requires the court to establish a parenting plan and enforce that plan. It “Sets the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. Joint custody does not necessarily mean equal physical custody.” The bill defines the various custody relationships.

“The court shall in every case consider joint custody but may award any form of custody which is determined to be There shall be a rebuttable presumption that joint custody is in the best interest of the child. This rebuttable presumption may be overcome only by evidence, set forth in written findings of fact, that joint custody is not in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical other forms of custody arrangements.”

The bill goes on to define the factors that he court may consider and the bill gives that court the authority to weigh various factors differently based on the facts presented and the best interests of the child.

SB266 has language very similar to the Shared Parenting law that was passed by the Kentucky legislature and signed  by Governor Matt Bevin (R) last year.

The effort to reform Alabama’s child custody statute has received support from a number of conservative groups including the Republican Women of Shelby County and the Alabama Baptist State Convention.

“The Children’s Equal Access Act will improve family court practices making outcomes more reliably consistent with fundamental rights, with prior legislative statements of public policy, and with sociological research regarding lifetime success and happiness for children.” Attorney Austin Burdick said in a statement.

Stutts said, “This bill is not about Judges, it is about what is in the best interests of the child.”

SB266 passed the Senate with strong bipartisan support 25 to 4. In the House however powerful members of the leadership have blocked this bill in committee in the past. If the bill gets out of committee, there are questions as to whether the leadership will allow SB266 to get to the House floor, where it has broad bipartisan support.

State Representative K.L. Brown, R-Jacksonville, is the Chairman of the Children and Senior Advocacy Committee.

Chairman Brown said that the committee will vote on the bill at a meeting on Wednesday, May 22.

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