Thursday January 16, 2014

After the opening days last week I was out of town at the YLD Thaw in Montreal. I spent Tuesday and Wednesday in House Judiciary covering the initial discussions on two bills. On Tuesday the committee began work on H. 581, a bill to revise the law concerning guardianships of minors. Wednesday’s testimony was on H. 88, a bill to permit a parent to petition the court for permanent sole custody of a child who was conceived as a result of a sexual assault.

H. 581 can be found here: http://www.leg.state.vt.us/docs/2014/bills/Intro/H-581.pdf

It is the result of a two year study committee whose final report can be read here: http://www2.leg.state.vt.us/CommitteeDocs/House%20Judiciary/Report%20of%20Minor%20Guardianship%20Study%20Committee/12-4-2013~Amy%20Davenport~Minor%20Guardianship%20Proceedings%20in%20Vermont%202012%20Report%20to%20the%20Vermont%20Legislature.pdf

The bill establishes procedures for appointing guardians for minors in either a consensual or a contested matter. It defines a child in need of guardianship, lays out the powers and duties of a guardian, and addresses termination of the guardianship.

The Probate Judges had some objections to the bill as some feel it makes it more difficult to get a guardianship. There are differences of opinion on whether the child (>14) must be present, whether or when the rules of evidence should apply, and whether counsel should be appointed for the child. The House Judiciary Committee plans to return to this bill next week. I believe Judge Davenport will be called to testify. If any of you have an interest in this please let me know and I’ll do my best to get you on the list of witnesses.

The second bill mentioned above is H. 88 which is found here: http://www.leg.state.vt.us/docs/2014/bills/Intro/H-088.pdf

Although there are a number of sponsors and it appears on its face to be a simple bill, it does present some problems and some committee members have voiced their concerns. In short the bill proposes to grant permanent sole parental rights and responsibilities to the victim parent of a sexual assault, where the non moving parent was the perpetrator. An order would be permanent and not subject to modification. The evidentiary standard is clear and convincing. A conviction of the underlying charge is not required. So where are the issues? Well, according to DCF counsel Jody Racht, if a later TPR petition is filed the non custodial parent must be notified and would be a party to the case. H.88 is not a TPR proceeding and at least one committee member sees it as, perhaps, an end run around the “best interests of the child” standard. Could it also be an end run around the criminal process? Sexual assault is not limited to, for example, forcible sexual assault. Sarah Kenney of the Network Against Sexual and Domestic Violence spoke to the aftermath of a sexual assault and the continued victimization by “using” parent-child contact against the victim. The question arose that perhaps couples living together at the time of the assault or indeed married should not be subject to such a statute.

Here’s an unintended result of this bill as it presently reads. We all remember the case of a female high school teacher who had sexual relations with a boy under 18. That’s sexual assault. H. 88 would allow the boy-victim to move for permanent PR&R if that teacher had conceived a child. Hmmm? Clearly this bill requires some work. I know witnesses will be called next week as the committee continues its work on this.

This afternoon, three members of the House Judiciary Committee (there are 11) will introduce H. 618, a bill that would require that al criminal charges against kids under 18 begin as juvenile delinquency proceedings in family division. It would also allow the family division to extend jurisdiction over the child until age 21.

Sorry for the delay in posting this week but there has been a lot going on, some of which was pretty emotional and really slowed down my game. As we all heard yesterday the VBA is going to be involved in a judicial selection commission named by Senator Leahy to choose a replacement for Judge William Sessions. There’ll be some busy but exciting days ahead. Thanks for reading.