The following is my report that I delivered to the full House on Friday, March 23. After 10 hours of debate on Friday and another six hours on Tuesday, March 27, the bill, S.55, passed the House on an 89 to 54 vote and passed the Senate on Friday on a 17 to 13 vote.
S.55 proposes a number of initiatives related to the regulation of firearms for gun violence prevention.
Sections 1-5 address the storage and disposition of seized and abandoned firearms in the possession of local law enforcement agencies and the Department of Public Safety.
Section 6 provides for expanded background checks prior to the purchase of firearms.
Section 7 sets an age limit of 21 for the purchase of firearms.
Section 8 imposes a ban on the possession and sale of high capacity ammunition feeding devices.
Section 9 imposes a ban on the possession and sale of bump stocks.
I will turn first to the firearm disposition portion of the bill, sections 1 through 5. These sections relate to storage issues that have arisen with respect to unlawful firearms in the possession of local law enforcement agencies and the Department of Public Safety. These firearms came into the possession of law enforcement because they were, for example, used during the commission of a crime and held as evidence, or used by a person who committed suicide.
Under a law passed in 1983, these firearms are supposed to be transferred by the Department of Public Safety to the State Treasurer, who is then directed by the statute to resell them. However, no firearms have been sold under this law during the 35 years that it has been on the books. As a result, the Department of Public Safety (“DPS”) is in possession of more than 1100 firearms, and local law enforcement agencies are holding others. This is especially problematic because DPS and local agencies have no designated space for firearms obtained after suicides, pursuant to relief from abuse orders, or under other circumstances. In fact, DPS is renting space from the Department of Buildings and General Services (“BGS”) just to store these accumulated firearms.
S.55 proposes to resolve this problem by no longer involving the State Treasurer and instead directing DPS to transfer the firearms to BGS for resale to a Federally Licensed Firearms Dealer (“FFL”). Since the firearms will only be sold to an FFL, this means that a background check will be conducted on the purchaser before the dealer resells them. The Commissioners of both agencies and the Treasurer have all agreed on and support this proposed change.
The language in Sections 1-5 primarily updates and details the new sale process. As I’ve already mentioned, it also changes the agency responsible for disposition of the firearms from the Treasurer to the Commissioner of Buildings and General Services. Section 1 states that, notwithstanding any other laws, this is the chapter that governs how DPS disposes of unlawful and abandoned firearms.
How a firearm is handled under the statute depends on how it fits into one of three categories set out in Section 2. “Unlawful per se” firearms are firearms that are unlawful to possess under any circumstances under State or federal law. These firearms would include machine guns and guns with removed serial numbers, for example. “Abandoned firearms” are firearms in the possession of the DPS that are no longer needed as evidence and remain unclaimed for more than 18 months from the date the firearms came into the Department’s possession. “Unlawful firearms” are those that were taken from an owner who was not allowed to possess the firearm, such as someone subject to a restraining order. They also include firearms that had been carried or used in violation of any federal or State law or in the commission of any federal or State felony. Those firearms are unlawful to possess because of how they have been used, not because of their type.
Under Section 3, 2305(a), unlawful per se firearms cannot be resold; they are either destroyed or retained by DPS for forensic science purposes. This makes sense since it is illegal for anyone to possess unlawful per se firearms under any circumstances.
If a firearm is unlawful or abandoned, there are 3 options under 2305(b): it may be sold to BGS for resale to an FFL, transferred to the Commissioner of Fish and Wildlife as is sometimes done under current law, or retained by DPS for forensic science purposes. Under 2305(b)(2), a firearm used in a homicide may never be resold, and must be either destroyed, used for forensic science purposes, or returned to an innocent owner if one exists and claims the firearm.
Under 2305(c), the proceeds of the sale are allocated between DPS and BGS, and if the firearms were held by a local law enforcement agency, the municipality would share in the proceeds as well. BGS, under its existing authority, can offset the costs of storage and sale, and the municipality can use its share to offset the costs of storing non-evidentiary firearms.
Subsection 2305(d) provides immunity from liability to DPS, BGS, local law enforcement agencies, and any other State agency or department for any acts taken or omissions made when storing or selling firearms under this statute.
Section 4 sets out a procedure under which, if a firearm has multiple owners, the innocent owner may file a claim for return of the firearm. This section is existing law, and no substantive changes are made.
Section 5 is the existing statute for removal and storage of firearms obtained by law enforcement agencies pursuant to relief from abuse orders. The only change here is additional language providing that, if the Vermont State Police possess such a firearm, it is treated the same as any other firearm held by the DPS under the statute as amended in sections 1-4.
And now I will turn to the remaining sections of S.55.
Effective gun policies in Vermont must balance the constitutional right to bear arms and Vermonters’ interest in gun ownership with concerns about public health and safety.
As made clear in the U.S. Supreme Court case, the District of Columbia versus Heller, the Second Amendment of the U.S. Constitution recognizes an individual right to keep and bear arms for traditionally lawful purposes such as self-defense. The Supreme Court in McDonald v. City of Chicago held that Second Amendment rights are applicable to states through the Fourteenth Amendment. Article 16 of the Vermont Constitution secures an individual right to bear arms for defensive purposes. The Supreme Court in Heller declared, however, that the right to bear arms is not unlimited. It is not a right “to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Many Vermonters cherish the traditions of hunting, sport shooting, and collecting guns. Many value the security and protection that guns can provide. At the same time, many Vermonters have suffered grievous injuries and lost friends and family members in incidents involving firearms. From 2011 to the end of 2016, 420 Vermonters died from deliberate and unintentional gun injuries. Over 2/3 of these deaths were suicides. In 2016, the latest year for which data is available, Vermont’s per capita gun death rate was 11.1 per 100,000 people. We ranked 15thamong the States and last in New England. The state’s murder rate is relatively low, although not the lowest. In 2016, five states had a lower murder rate than Vermont.
Vermont is not immune to the gun violence that has shaken communities across the nation. Recent events in Las Vegas and Florida and, closer to home, in Fair Haven, Vermont, underscore the threat to public safety when those who intend harm possess firearms. The Governor recognized that Vermont is not immune and urged the legislature to consider a host of proposals for improving school safety and reducing violence. This we have done and are continuing to do.
Our goals are to keep guns out of the hands of those who intend to do harm to themselves or others and to reduce the lethality of firearms that may be misused.
The Judiciary Committee took testimony and evaluated a number of policy options to work towards these goals. We have also heard from 100s of Vermonters who have provided their comments and views through emails, letters, and phone calls.
The Judiciary Committee’s proposed strike-all amendment to S.55 is the result of its deliberations. Along with previously passed bills related to Extreme Risk Protection Orders and the temporary removal of firearms from domestic violence situations, S.55 takes measured steps that seek to improve public safety in Vermont.
Turning to Section 6, which establishes rules for firearm transfers and Background Checks
Background checks for gun purchases are designed to prevent access to guns by convicted felons and other prohibited possessors including fugitives from justice, users of controlled substances, those with certain histories of mental illness, those who have been dishonorably discharged from the military, those subject to a restraining order, and those convicted of domestic violence offenses (18 USC 922).
The federal Brady Handgun Violence Prevention Act went into effect in 1994. It imposed federal requirements for background checks on sales by licensed dealers (or FFLs) but not for private sales or transfers of firearms. This leaves an unregulated “secondary market” of gun sales between private citizens. Nationwide, about 40 percent of gun sales occur in these private transactions. Philip Cook et al., “Regulating Gun Markets,” Journal of Criminal Law and Criminology 86 (1995).
Several states have expanded the federal requirement to mandate that background checks be conducted for all firearm transfers, including between private parties. These include universal background checks required by California, Colorado, Connecticut, Delaware, Nevada, New York, Oregon, Rhode Island, Washington and DC. In addition, Hawaii, Illinois, Massachusetts, and New Jersey require all firearm purchasers to obtain a permit after a background check
Background check laws prevent firearm purchases or possession by individuals thought to be at high risk of being a danger to themselves or others. By restricting the means by which such dangerous individuals can access guns, these laws are designed to reduce gun crime and violence. While compliance is likely to be imperfect, an expanded background check requirement will still reduce gun-related homicides or suicides. It deters prohibited possessors from attempting to acquire firearms or at least makes it harder for them to succeed in doing so.
Since the Brady law was enacted, over three million prohibited purchases were blocked by background checks from buying guns from licensed gun dealers. So most prohibited possessors obtain their firearms in private sales. One study noted that 80 percent of prison inmates had obtained their firearms in private sales when they were not incarcerated. Vittes et al, “Legal Status and Source of Offenders’ Firearms in States with the Least Stringent Criteria for Gun Ownership,” Injury Prevention (2013).
Expanded background checks will help to ensure that innocent sellers do not transfer a firearm to a prohibited possessor.
May I read from a report:
“Most private sellers appear to do little to determine whether the purchaser is a prohibited person. Many private sellers seem willing to sell even if they have reasonable cause to believe they are selling to a criminal. Private investigators performed ‘integrity tests’ on 30 private sellers at gun shows in Nevada, Tennessee, and Ohio. Even though the purchasers stated that ‘he probably could not pass a background check,’ 63 percent of sellers completed the sales.” David Hemenway, “Reducing Firearm Violence,” University of Chicago Press (2016).
Other studies have shown that background checks reduce total suicides and firearm suicides. Studies have also shown that background checks reduce violent crime, homicide rates, and firearm homicides. States with background checks for private sales of firearms have been shown to have lower rates of firearm death. Kaufman, et al., State Firearm Laws and Interstate Firearm Deaths from Homicide and Suicide in the United States (March 5, 2018); Rand, The Science of Gun Policy, A Critical Synthesis of Research Evidence on the Effects of Gun Policies in the United States (2018).
The Judiciary Committee heard from a Law Enforcement Officer with over 20 years of experience, many of those years spent combatting drug trafficking. In written testimony he indicated that “background checks for private purchases would absolutely be a useful tool in preventing not only gun violence but also could hinder the purchase and sale of heroin and other opiates in our state when dealing with . . . drug addicts” who trade firearms for drugs. He indicated that “with background checks, there will be fewer guns in Vermont that are untraceable. This will hinder an addicts choices about how to pay for drugs and slows down the pipeline of illegal guns.”
As for the pipeline, in 2016, Vermont had the 20thhighest rate of crime gun exports, meaning guns originally sold in Vermont were recovered after being used in crimes in other states at rates significantly above average.
Turning to the language of the bill.
Subsection 4019(a) provides definitions.
A Licensed Dealer is a federally licensed firearm dealer.
Proposed transferee – an unlicensed person to whom a proposed transferor intends to transfer a firearm.
Proposed transferor – the unlicensed person transferring the firearm
Unlicensed person is someone who is not a federally licensed firearm dealer.
Subsection 4019(b) provides the procedure for an unlicensed person to transfer a firearm to another unlicensed person.
The proposed transferor and proposed transferee must physically appear together with the firearm at a federally licensed firearm dealer who then runs the background check on the proposed transferee in a matter of minutes.
In undertaking the transfer, those involved are prohibited from making a false statement or using a false identification to deceive the licensed dealer.
Subsection 4019(c) explains how the dealer facilitates the firearm transfer. The dealer follows the same procedure as if it was selling a firearm from the dealer’s inventory. If the background check shows that the proposed transferee is prohibited from purchasing or possessing the firearm, the dealer is to return the firearm to the proposed transferor and decline to continue to facilitate the transfer. The licensed dealer may charge a reasonable fee.
I’m going to skip to subsection 4019(f). During testimony we heard the concern that licensed dealers may not wish to facilitate transfers because of potential liability. This section makes clear that a licensed dealer facilitating a transfer will be immune from civil or criminal liability for actions or omissions made when facilitating a transfer in reliance on this law. Unless, of course, the misconduct is reckless or intentional.
Subsection 4019(d) relates to penalties. If an unlicensed person transfers a firearm to another unlicensed person without going through the procedure set forth in this legislation, he or she would be subject to a one-year misdemeanor and/or a fine of not more than $500.
The same penalty would apply if a person violates the prohibition against false statements or false identification.
Finally, subsection (e) provides that certain transfers do not have to comply with the background check requirement. Transfers involving a law enforcement agency or to a law enforcement officer or a member of the U.S. Armed forces acting within the scope of their official duties are precluded.
The requirements also do not apply to a transfer between immediate family members, which include a spouse, parent, stepparent, child, stepchild, sibling, stepsibling, grandparent, stepgrandparent, grandchild, stepgrandchild, greatgrantdparent, stepgreatgrandparent, greatgrandchild, and stepgreatgrandchild.
The requirement also does not apply to a transfer meant to prevent imminent harm.
Raising Age for Firearms Purchase
Now turning to Section 7 of S.55. That section would prohibit the sale of firearms to individuals under age 21, with some exceptions. What is the current law related to age restrictions? Federal law regulates sales by licensed dealers. It prohibits the sale of handguns by licensed dealers to individuals under age 21. Federal law does not restrict private sales of handguns or long guns to those 18 or older. Federal law prohibits the sale of handguns by anyone to those under 18. With some exceptions, it is illegal under federal law for a child under age 18 to possess a handgun. (18 USC 922(x)). Under Vermont law, it is illegal for a child under age 16 to possess a handgun without parental consent. 13 VSA 4007.
S.55 would restrict all sales of firearms to those under 21, with some exceptions. It would not restrict possessionof firearms by those under 21.
The aim of such a restriction is to limit the availability of firearms to young people unless they have had appropriate training in firearm safety. The provision is not an outright ban.
Nevertheless, putting some restrictions on the ability of youth to purchase firearms would reduce the impulsive purchase and misuse of such firearms. It would therefore reduce the gun violence and unintentional shootings committed by young people.
The data is limited as to the age distribution of homicide perpetrators in Vermont. But generally, firearm homicides and violent crimes disproportionately involve individuals under age 21, both as perpetrators and victims.
Research suggests a strong association between firearm availability and suicide among adolescents and young adults. In 2015, there were 3,111 suicide deaths nationwide among individuals aged 16 to 21. 43.6 percent involved a firearm. 40 to 50 percent involved a long gun, not handguns, suggesting that minimum age laws covering long guns as well as hand guns may have larger effects on suicide rates. In Vermont, from 2014-2016, there were 23 suicides among individuals aged 16 to 21. 43.5 percent of those involved a firearm. We found no statistics differentiating those between long guns and handguns.
Although it makes sense to restrict access in order to address these problems, it is also important that the law does not adversely impact lawful activities undertaken by those under 21 such as hunting and recreational shooting. The Judiciary Committee added exceptions to the minimum age requirement to strike this balance. Also, the section does not bar possessionof firearms by those under 21, only sales to those individuals.
Turning to the bill.
Subsection 4020(a) prohibits selling firearms to those under 21 years of age. A violation subjects the seller to a one-year term of imprisonment and/or a $1000 fine.
Subsection 4020(b) provides exceptions to this prohibition. A person can sell firearms to the following individuals aged 16 to 20:
* A law enforcement officer
* A veteran or active member of the Vermont National Guard, National Guard or armed services.
* A person who has a certificate of completion of a hunter safety course approved by the Commissioner of Fish, Wildlife, and Parks in Vermont or another State (These hunter safety courses follow guidelines from the National Hunters Association)
In summary, this prohibition on firearm sales is intended to delay or impede the acquisition of firearms by those under 21 who may wish to acquire such weapons with ill intent or those operating on impulse.
Section 8 relates to large capacity ammunition feeding devices like magazines or clips
Laws banning high-capacity feeding devices are primarily intended to reduce firearm-related casualties and fatalities from violent crime. Such a ban could impact firearm-related violence by decreasing the number of casualties in a given shooting and decreasing the fatality rate. That is, other things being equal, a shooter with a weapon equipped with a high-capacity magazine can fire more ammunition and hence inflict more casualties in a given length of time than would a shooter using weapons with a lower rate of fire and capacity. In a mass shooting incident, the lower rate of fire should allow for more people to evacuate and for law enforcement or others to intervene.
Data combining 184 mass shooting, spree shooting, and active shooter events from 1982 to 2015 suggest that 37 percent of the incidents involved high-capacity magazines. Another analysis looked at mass shooting events involving four or more fatalities between 2009 and 2016. It reported that 11% of the incidences involved an assault weapon or high-capacity magazine, resulting in 155 percent more injuries and 47 percent more fatalities compared with other incidents.
A ban on large capacity ammunition feeding devices would reduce the number of these devices that will be in circulation. It will reduce the capacity, and thus the potential lethality, of any firearm that can accept a large capacity magazine, including a firearm that would not be considered as an assault-style firearm.
Section 8 of the bill would ban large capacity ammunition feeding devices. Section 4021(a) prohibits a person from manufacturing, possessing, transferring, offering for sale, purchasing, receiving, or importing into this State a large capacity ammunition feeding device.
Subsection (b) provides that a person violating the ban will be imprisoned for up to one year and/or fined up to $500.
Subsection (c) indicates that the ban does not apply to possession of such feeding devices possessed before the effective date of the act. This subsection grandfathers the possession of preexisting feeding devices.
Subsection (d) provides other exceptions to the ban.
It does not apply to the sale of large capacity ammunition feeding devices manufactured for, transferred to, or possessed by a variety of entities:
The United States or its agencies
Political subdivisions of the state.
State or federal law enforcement officers for law enforcement purposes.
Licensees under Title I of the Atomic Energy Act of 1954.
Or individuals retired from a law enforcement agency.
It also does not apply to devices manufactured, transferred, or possessed by certain entities authorized by the U.S. Attorney General.
Subsection (e) defines a large capacity ammunition feeding device as a magazine, belt, drum, feed strip, or similar device that has a capacity of, or that can be readily restored or converted to accept, more than 10 rounds of ammunition.
In the past decade there have been numerous mass shootings. I’m going to focus on three to make a point. In Newtown, Connecticut, a gunman using thirty-round magazines murdered 20 first-graders and six adults at Sandy Hook Elementary School. In Tucson, Arizona, a gunman killed six and wounded thirteen at a congresswoman’s constituent meeting in a grocery store parking lot. In Aurua, Colorado, twelve people were killed and at least 58 wounded in a movie theater.
There is an important lesson learned from Newtown, where nine children were able to run from a targeted classroom while the gunman paused to change out a large-capacity thirty-round magazine. An important lesson can be learned from Tucson, where the shooter was finally tackled and restrained by bystanders while reloading his firearm. And an important lesson can be learned from Aurora, where a 100-round drum magazine was emptied without any significant break in the firing. The lesson is that reducing the number of rounds that can be fired without reloading increases the odds that lives will be spared in a mass shooting.
For example, let’s say a shooter has to use ten-round magazines instead of magazines that hold thirty, fifty, or 100 rounds. In that case, for every 100 rounds fired, that 10-round limit would afford six to nine more chances for bystanders or law enforcement to intervene during a pause in firing, six to nine more chances for something to go wrong with a magazine during a change, six to nine more chances for the shooter to have problems quickly changing a magazine under intense pressure, and six to nine more chances for potential victims to find safety during a pause in firing.
Limiting a shooter to ten-round magazines could mean the difference between life and death.
May I read from the written testimony of the Windsor County State’s Attorney:
“Balancing a would-be victim’s constitutional right to (continued) life against the constitutional right of another to bear arms is no easy task. It is my professional opinion that a 10-round magazine limit fairly balances these competing rights and, if enforced, would offer victims and first responders a brief window to act during a mass shooting incident.
In order for this ban to be effective, it must clearly prohibit the offering for sale of high capacity magazines, regardless of date of manufacture, into this State from outside the State. I am mindful that the typical mass shooter is socially isolated and therefore quite likely to be reliant upon the internet as a source for parts and accessories, including magazines, to upgrade an existing arsenal. In drafting and debating the proposed statutory language, I hope you will keep in mind that Vermont-based FFL holders are quite likely to comply with Vermont law, whereas out-of-state internet sellers will likely need to face clear and certain criminal penalties in order to achieve their compliance.”
Again that was from written testimony of the Windsor County State’s Attorney.
The ban is intended to constrict the supply of high capacity ammunition loading devices available in Vermont. It will help to keep these high-lethality devices out of the wrong hands.
Section 9 relates to bump stocks
This restriction is quite straightforward. A bump stock allows its user to convert a semiautomatic weapon into an automatic weapon. One of the many problems with this is that automatic weapons, or machine guns, cannot be lawfully owned unless they were manufactured prior to May 19, 1986, and even then pursuant to strict regulations.
A bump-fire stock replaces a rifle’s standard shoulder stock (that’s the part that is held against a shooter’s shoulder) with a stock that allows the weapon to slide (or “bump”) back and forth very rapidly between the shooter’s shoulder and trigger finger. This allows a firearm to fire at rates approaching automatic machine gun fire, making firearms equipped with such devices particularly lethal if they are in the wrong hands.
Subsection 4023(a) defines a bump-fire stock.
Subsection 4023(b) provides that a person in possession of a bump-fire stock is subject to imprisonment of up to one year and/or a fine of $1000.00.
I would especially like to thank the legislative council for their diligent work on this bill.
The Committee Vote was 6-5.
In closing, I will note that Vermont has a large stock of privately owned guns in circulation. So, laws designed to change who may buy new weapons, what weapons they may buy, or how gun sales occur will predictably not eliminate gun violence. Such laws may also inconvenience some individuals.
But the policies in this bill will help keep firearms away from those who intend harm and will reduce the lethality of firearms that may be misused. And these policies will not undermine individual rights to own guns for self defense or undercut participation in sport shooting or hunting.
These policies will move Vermont in the right direction in reducing gun violence and address our responsibility for improving public safety in our State.
The following is the report that was provided to the House for H.562 on February 2. I wrote most of the report, but the Committee shared responsibility in delivering the content. I covered chapter 1 and 2 on the House Floor and also answered questions during interrogation by House members. It made sense to have one point person for the interrogations on all parts of this complicated bill. The bill which is now in the Senate reflects a lot of good work by the members of the Parentage Study Committee, Legislative Council, and the House Judiciary Committee.
H.562: An act relating to parentage proceedings is the result of the Parentage Study Committee’s work. This body enacted the Committee last session in response to the Vermont Supreme Court’s repeated request, both through testimony and case law, to provide legislative recommendations to modernize Vermont’s parentage laws in recognition of the changing nature of Vermont families.
More than thirty years ago, in 1984, the Vermont legislature enacted the “Parentage Proceedings Act”. It has not been updated since. That law was intended to allow the speedy recovery of child support, not to govern the rights of parentage for children born through alternative reproduction technologies, surrogacy, or to same-sex partners.
State law has simply not kept pace with the myriad of ways in which Vermonters become parents.
Since 1997, the Vermont Supreme Court has grappled with how to address parentage. The court has recognized that parental status can flow from the mutual agreement and action of the parents even in the absence of a marriage or a civil union between the parents or a biological connection between one of the parents and the child. The court has recognized that it is the advancement of reproductive technologies and society’s recognition of lifestyles that have produced families in which a biological and therefore a legal connection is no longer the sole organizing principal.
The court has stated that biology and marriage are not the only indicia of family formation that are worthy of judicial recognition.
Thus, the Supreme Court looked to the General Assembly, stating “Given the complex social and practical ramifications of expanding the classes of persons entitled to assert parental rights… the Legislature is better equipped to deal with the problem. Deference to the Legislature is particularly appropriate in this arena…”
The Court has continued to grapple with similar situations and has noted in numerous opinions that legislative guidance is needed on this issue. The Supreme Court in 2014 stated, “I urge the Legislature to act, and to act with some urgency so that an archaic legal system does not create uncertainty for families and children and inflict real harm on them.”
Subsequently, the Court wrote that the continuing failure to enact a real parentage act is the largest and most significant deficiency in our statutory scheme regulating the rights and responsibilities of family members where the interests of children are involved.
In 2016, another Justice stated that “New legislation concerning parentage would enable the Legislature to identify and communicate its intentions with respect to the various policy issues impacting the best interests of children, would provide clarity for courts struggling with these issues, and would ultimately benefit the children of Vermont.”
Most recently, the Supreme Court stated that “we continue to urge the Legislature to take action and hope that the study commissioned by the legislature leads to the enactment of statutory revision that render this decision and others by this court obsolete. The global perspective, consideration of extensive empirical evidence and public input and accountability of the legislative process are better suited than case-by-case adjudications to developing a coherent law of parental status.”
The House Judiciary Committee with the help of the study committee has taken such action. H.562 gives the courts a process to determine who gets to walk through the courthouse door as a legal parent to then sort out those parental rights and responsibilities. H.562 is modeled after Uniform Parentage Act, which was updated in 2017, and on the Maine Parentage Act, which went into effect on July 1, 2016.
In summary, the bill provides several ways that parentage can be established. One can become a parent by giving birth, adopting, signing a voluntary acknowledgment of parentage, admitting to parentage in a court action, being a de facto parent, a genetic parent, consenting to assisted reproduction or a gestational carrier agreement (also known as surrogacy).
I want to make clear that this bill does not address parental rights and responsibilities, such as who gets custody or visitation.
The vote in committee was 11-0.
Madam Speaker H.562 recognizes our common humanity that parentage is about love, regardless of biology. I ask the body for its support.
This chapter provides general provisions that apply to the rest of the Act.
Section 102 includes relevant definitions.
Section 103 makes clear that the bill is not about parental rights and responsibilities. Rather, the bill sets forth standards to establish who can be a legal parent. Once one knows who the legal parents are, courts turn to other provisions of Vermont law to determine parental rights and responsibilities such as custody, visitation, and child support.
Sections 104 through 110 provide procedural details regarding a judicial parentage action, including who can file a lawsuit seeking adjudication of parentage, who is to be provided notice of the proceeding, how the notice is to be provided, personal jurisdiction, venue, and joinder.
While a parentage action is pending, section 111 provides that a Court can issue interim orders for child support. So, as the Court is figuring out who the legal parents are, the existing child support obligations will continue.
Section 112 is the first substantive pathway to parentage that the bill includes. If a case is brought in court to establish that an individual is a parent, say by requiring a genetic test of that individual, the person can simply admit parentage. The Court can then decide to issue an order adjudicating that person as a parent.
Section 114 explains what is required in a court order establishing parentage.
Section 115 establishes who is bound by the parentage determination. Under certain circumstances a child is not bound by the determination.
Section 115 also establishes how and when a person can challenge an adjudication of parentage. Of note, a person who was not a party to and did not receive notice of an adjudication can challenge it within two years of the date of the adjudication. In the interest of stability for the child, the Court can allow the challenge to proceed only if it finds that it is in the best interest of the child. This is an overriding theme of this bill – it seeks to ensure the best interest of the child, including having stability in a parent-child relationship.
So, Chapter 1 is for the most part about the procedures governing parentage adjudications. We start to get more into the substance in Chapter 2.
Section 201 lists nine ways a person can legally become a parent. Some of these are further addressed later in this bill.
- Giving birth to a child, unless otherwise provided in chapter 8 of this title. Chapter 8 relates to a gestational carrier arrangement, or surrogacy. In other words, having someone else bare one’s child.
- Adoption pursuant to Title 15A, which is not further addressed in this bill.
- A voluntary acknowledgement of parentage, which is covered by Chapter 3 and will be discussed further.
- An adjudication based on an admission of parentage under section 112 – already discussed.
- A presumption of parentage under chapter 4. Further details about this pathway and the rest of the ways to establish parentage will be provided shortly.
- An adjudication of de facto parentage under chapter 5.
Briefly, what is a de facto parent? A de facto parent is a person who has been found by a court to have assumed, on a day-to-day basis, the role of the parent, fulfilling both the child’s physical and psychological need for care and affection, and who has assumed that role for a substantial period.
- An adjudication of genetic parentage under chapter 6.
- Consent to assisted reproduction under chapter 7.
- Consent to a gestational carrier agreement by the intended parent.
Section 202 clearly states the public policy of Vermont that “every child has the same rights under law as any other child without regard to the marital status or gender of the parents or the circumstances of the child’s birth.”
As provided in section 203, once parentage is established in one of the myriad ways under this title, the parental rights and duties of other provisions of law apply.
Section 206 is a critical provision in the bill and is cross referenced in a number of other sections. The Court is to look to this section to sort out competing claims of parentage. And what the Court is to consider are factors for determining the best interests of the child. For example, the Court should consider:
The age of the child
Length of time during which each person assumed the role of parent of the child
The nature of the relationship between the child and each person
The harm to the child if the relationship between the child and each person is not recognized.
The basis for each person’s claim to parentage.
And other factors arising from the disruption of the relationship between the child and each person or the likelihood of other harm to the child.
If the Court finds that it would be in the best interest of the child, it can find that the child has more than two parents, meaning that more than two people could share in the parental rights and responsibilities.
A few comments about this concept.
First, a court is not required to find that there are three parents, though it has discretion to do so.
Second, the circumstances in which there can be a finding of more than two parents are relatively limited. Those circumstances will be addressed in the explanation of the relevant chapters of this title.
The bottom line. When we look to intent and conduct, instead of only biology or marriage, to create legal parent-child relationships, it becomes clear that there may be more than two people who are candidates for the legal title “parent.” The court may find that it is sometimes in the best interest of the child for the child to have more than two legal parents. This is entirely consistent with formation of some modern families.
Chapter 3 – Voluntary Acknowledgement of Parentage
Chapter 3 deals with voluntary acknowledgements of parentage. Vermont law already has a provision related to this topic, found at 15 VSA s 307. But H.562 provides a much more detailed process than current law for establishing parentage through such acknowledgements.
Vermont enacted its Voluntary Acknowledgement of Parentage statute in 1997 as part of a larger federal mandate to stream-line the child support process. Such Acknowledgements would provide a relatively quick administrative route to parentage and child support, critical when an increasing percentage of children are born out of wedlock. Currently, over 40% of Vermont children are born out of wedlock.
Under current law, Voluntary Acknowledgements of Parentage forms signed by unwed biological parents have the legal effect of a judicial determination of parentage.
H.562 modifies current law in important ways. It provides, in section 301 that the following persons may sign an acknowledgement of parentage:
1) a person giving birth to the child
2) a person who is alleged to be the genetic parent of the child
3) a person who is an intended parent pursuant to chapter 7 or 8 (more on that later)
4) a presumed parent pursuant to chapter 4 of this title.
The first two categories are the biological parents – the traditional unwed parent scenario.
Number 3 involves individuals using artificial reproductive technologies or surrogacy.
Number 4 allowing presumed parents to sign Acknowledgements could involve situations where a signatory is not a biological parent. For example, a person who is not a biological parent can be deemed a presumed parent if married to the birth parent at the time of the child’s conception or birth. More on presumed parents when we get to Chapter 4 of this title.
In an effort to avoid confusion over who is and isn’t a parent, section 303 provides that a person who is a presumed parent or alleged genetic parent can sign a denial of parentage under certain conditions.
Section 305 confirms that a signed Voluntary Acknowledgement of Parentage is enough to establish legal parentage, without the necessity of a judicial adjudication.
It is a quick administrative route to parentage. It requires filling out a form to establish parentage of children by agreement outside the court system. In short, the Voluntary Acknowledgement of Parentage acts as an adjudication of parentage.
There are, however, some ways to get out of a signed Acknowledgement or denial or to challenge an Acknowledgement. Under section 307, a signatory can rescind an acknowledgement or denial within 60 days after the effective date of the acknowledgement or denial.
After the rescission period, under section 308, a signatory can challenge the Acknowledgement or Denial within a year if it was based on fraud, duress, coercion, threat of harm, or material mistake of fact.
Under the same section, a person who is not a signatory can challenge the acknowledgement within two years of the effective date of the acknowledgement or within two years of discovery of the person’s potential parentage.
Procedures for rescissions or challenges are specified in section 309, and the content of the Acknowledgement and Denial forms are set forth in section 310.
Chapter 4 – Presumed Parentage
More and more, the Vermont courts have been facing situations in which a couple is unmarried and do not sign a Voluntary Acknowledgement of Parentage. Both adults live with the child, care for and support the child, and hold the child out as their own. They then break up and have a dispute over parentage and parental rights and responsibilities. Under current law, the courts have been prevented from bestowing the status of parent on the non-birth, non-adoptive parent. As a result, the child, who has come to love and rely on this adult, is denied the care and support of this parent figure.
Chapter 4 modernizes Vermont’s parentage laws to address these kinds of situations. Section 401 provides that a person is presumed to be a parent of a child if one of four situations exists:
(1) the person is married to the birth parent at the time of birth,
(2) the person was married to the birth parent at the time of conception,
(3) the person married the birth parent after the child was born and is named on the birth certificate, or
(4) the person resided in the same household with the child for the first two years of the child’s life, and the person and another parent of the child openly held out the child as the person’s child.
This last category of Section 401 ensures protection and recognition for the children of nonmarital couples who have jointly planned for and parented those children.
The presumption of parentage is rebuttable under section 402. It can be invalidated in certain situations.
For example, in a situation where a person is married to the birth parent at the time of birth, that person is a presumed parent. But, let’s say that the child was conceived in an extra-marital affair. That other genetic parent could challenge the presumption within two years of finding out about the child’s birth. If the Court finds that the person is the genetic parent of the child, it is not allowed to disestablish the presumed parent. In this situation, there could be more than two legal parents.
Unfortunately there are situations where an individual who is abusive to the birth parent or the child can be deemed a presumed parent under the fourth category of presumed parentage (a person who resided in the same household with the child for the first two years of the child’s life and the child was openly held out as the person’s child). To address such a situation, section 402 allows a parent to challenge the presumption of parentage at any time if duress, coercion, or threat of harm caused the parent to hold out the child as the other person’s child.
One final point about presumptive parents. As section 403 provides, if more than one presumption arises, a Court looks to section 206 to address the competing claims of parentage by analyzing the best interest of the child. The Court in that situation may find that there are more than two legal parents.
Chapter 5 provides another significant improvement to current Vermont parentage law. It allows a person to be adjudicated a parent if the person shows by clear and convincing evidence that he or she has “undertaken a permanent, unequivocal, committed, and responsible parental role,” in the child’s life and that it is in the child’s best interest to declare this person to be a parent of the child.
Being able to establish de facto parentage to a court ensures that a child can maintain a parent/child relationship with a person who has functioned as the child’s parent. This Chapter balances the needs of children and adults. On the one hand, it provides safeguards for existing legal parents by imposing heightened standing and proof requirements to gain de facto parent status. On the other hand, it allows courts to protect children from the termination of an important adult relationship when those requirements are met.
There are two situations that the Chapter addresses:
First, in the case where there is only one recognized legal parent, a person seeking to establish de facto parentage has two hurdles to overcome. As provided in section 502, the person must first show standing to petition the court for de facto parentage status. If standing is established, the person has to establish by clear and convincing evidence the long list of requirements in section 501.
Second, in the case where there are two recognized legal parents and a third person is seeking to establish de facto parentage, three hurdles must be cleared: the standing requirement of section 502, the factors listed in section 501, AND the best interest of the child factors listed in section 206. In this scenario, the Court in its analysis under section 206 may find that it is in the best interest of the child to have more than two legal parents.
In both these scenarios, there may be a need to protect against a perpetrator of abuse establishing de facto parentage. Thus, Section 501(a)(2) provides that a parent may show that any fostering or bonding of a dependent relationship occurred because of duress, coercion, or threat of harm. If that showing is made, the Court would reject the petition to become a de facto parent.
Other states have recognized some form of de facto parents, including Massachusetts, New Hampshire, Texas, North and South Carolina, California, Colorado, Kansas, and New Mexico. Most recently, Delaware and Maine have created a de facto parentage status by enacting a version of the Uniform Parentage Act.
Chapter 6 governs genetic testing to establish parentage. It is a more detailed replacement of current Vermont law, which is found at 15 VSA s 304.
As with current law, the subchapter identifies who can request genetic testing, who pays for it, how the results are to be used in court, the standards for adjudicating parentage based on genetic tests, and the circumstances under which the court can deny a request for genetic testing.
Chapter 7 – Parentage by Assisted Reproduction
It is becoming more and more common for Vermonters to use assisted reproduction to help them have a child. Since the birth of the first in vitro fertilization baby in 1978, exponential advances in reproductive medicine have made parenthood possible for people who would otherwise be unable to achieve pregnancy. Northeastern Reproductive Medicine in Colchester, Vermont, has employed Assisted Reproductive Technologies to help Vermont families achieve more than 470 pregnancies in the last three years alone. These numbers do not include families who utilize the University of Vermont Medical Center, and Vermont citizens who travel out of state for fertility treatments.
The use of such technologies, including the use of third parties such as sperm and egg donors, and gestational carriers, has created a host of legal issues that need to be addressed by the legislature. Vermont’s statutes have not been updated to address parentage in the age of assisted reproduction. H.562 fills this void.
Chapter 7 recognizes families formed using Assisted Reproductive Technologies. It addresses the rights of the intended parents and the “donor” (a person who provides gametes or embryos). It also provides for what happens if the intended parents divorce or one of them dies while the procedure is underway.
The chapter also allows for the intended parents to obtain a birth order, either before or after the child’s birth, declaring the intended parents to be the legal parents of the child.
Chapter 8 – Parentage by Gestational Carrier Agreement
Chapter 8 addresses a modern method of becoming parents: agreements between intended parents and a gestational carrier – that is, a person who agrees to carry an embryo to term for intended parents, sometimes referred to as a surrogate.
This Chapter contains provisions to protect the rights of children, gestational carriers, and intended parents. It spells out the requirements for eligibility to be a gestational carrier and an intended parent, as well as the necessary elements for an enforceable gestational carrier agreement. It also provides for the intended parents to obtain a pre-birth order of parentage, effective upon the birth of the child.
The Chapter allows for the gestational carrier to be paid a reasonable consideration in addition to reasonable expenses. It also clearly ensures that the gestational carrier has total control over her body.
Finally, the Chapter provides an avenue for consideration of genetic testing results if there is a basis for believing that the child might be genetically related to the surrogate.
One of the many negative consequences of the opioid epidemic in Vermont is the dramatic increase in family court cases addressing the abuse and neglect of children. The increase has bogged down the family courts and, more importantly, shows that opiate abuse is leading to more struggling and broken families. Last week, the Chief Justice of the Vermont Supreme Court explained to the Judiciary Committee the judicial branch’s efforts to address the crisis. In particular, he discussed a Judicial Commission created by the Supreme Court that is evaluating how treatment courts can alleviate the problem. Properly run treatment courts, which provide close supervision of participants to hold them accountable for meeting their rehabilitation obligations, reduce recidivism. They can help mend families and reduce costs in the justice system. The key is to determine how best to implement treatment courts, which is the charge of the Judicial Commission. Legislation to implement the findings of the Commission is expected next Biennium.
This week, the Committee passed the parentage bill, which will be reported on the floor on Friday. It has also started to consider a bill to modify bail.
The first week of the second half of the biennium mostly focused on a holdover from last year, namely a bill to legalize personal use of marijuana. Effective July 1, 2018, the bill would remove all civil and criminal penalties for possession of up to one ounce of marijuana and for the growing of two mature and four immature marijuana plants, so long as certain conditions related to growing those plants are followed. The bill takes an appropriate next step, building on the legislature’s previous decriminalization of possession of up to one ounce of marijuana. The bill continues to impose penalties on the possession of marijuana by individuals under 21 years of age and increases the penalties on those who enable minors to consume marijuana.
On the first day of the session, two bills that I am sponsoring were introduced. One, H.557, would reform the collective bargaining process between school boards and teachers. I will describe that bill in more detail in a future post.
The second bill, H.556, would ban noncompete clauses in Vermont. Noncompete clauses can suppress wages and keep would-be job seekers unemployed. If you are unable to threaten to leave one job for a better job, then you have less ability to earn better wages. Also, with a noncompete clause, a worker is forced to stay longer at one job – their mobility is reduced and their ability to earn a living is reduced.
This bill favors open competition and employee mobility, both of which are undermined by noncompete clauses. In short, eliminating noncompete clauses helps to keep residents gainfully employed, able to provide for themselves and their families, and off the welfare and social service rolls.
The bill is modeled after a California law. Barring noncompete clauses in California has not limited the innovation and economic growth in that State. Worker mobility creates knowledge spillovers across firms and industries, which in turn produces more innovation.
There is one objection to eliminating noncompete clauses that is frequently heard: if employees can just up and leave, then employers will have less incentive to invest in their training. Perhaps. But, if you can switch jobs, that would guarantee that you would get paid wages reflecting your value to the firm. That, in turn, would encourage you to develop your own skills.