REPORT TITLE:
Paternity


DESCRIPTION:
Provides reimbursement for a husband of a marriage for any child
of the marriage conceived by another man.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2266
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO FAMILIES.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Chapter 584, Hawaii Revised Statutes, is amended
 
 2 by adding a new section to be appropriately designated and to
 
 3 read as follows:
 
 4      "§584-     Child born to a married woman and an unmarried
 
 5 man; rights of the husband of the marriage.  In the situation
 
 6 where another man has fathered a child of a married couple, the
 
 7 husband of the marriage has the following rights:
 
 8      (1)  To sue, in the family court, the natural father for
 
 9           reimbursement for any child support paid by the husband
 
10           of the marriage for the child going back to birth for
 
11           the child; and
 
12      (2)  To retain all parental rights as though he were the
 
13           natural father of the child.
 
14 The natural father of the child shall have no parental rights in
 
15 regard to the child, including visitation rights, unless the
 
16 parties to the marriage are divorced and the husband of the
 
17 former marriage is not involved with the child."
 
18      SECTION 2.  Section 584-1, Hawaii Revised Statutes, is
 
19 amended to read as follows:
 

 
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 1      "[[]§584-1[]]  Parent and child relationship defined.  As
 
 2 used in this chapter, "parent and child relationship" includes
 
 3 the legal relationship existing between a child and the child's
 
 4 natural mother, between a child and father whose relationship as
 
 5 parent and child is established under this chapter, between a
 
 6 child and the husband of a marriage when the child is born during
 
 7 the course of the marriage regardless of whether the child is the
 
 8 natural child of the husband, or between a child and the child's
 
 9 adoptive parents, incident to which the law confers or imposes
 
10 rights, privileges, duties, and obligations."
 
11      SECTION 3.  Section 584-13, Hawaii Revised Statutes, is
 
12 amended by amending subsection (a) to read as follows:
 
13      "(a)  On the basis of the information produced at the pre-
 
14 trial hearing, the judge conducting the hearing shall evaluate
 
15 the probability of determining the existence or nonexistence of
 
16 the father and child relationship in a trial and whether a
 
17 judicial declaration of the relationship would be in the best
 
18 interest of the child.  On the basis of the evaluation, an
 
19 appropriate recommendation for settlement shall be made to the
 
20 parties, which may include any of the following:
 
21      (1)  That the action be dismissed with or without prejudice; 
 
22      (2)  That the matter be compromised by an agreement among
 
23           the alleged father, the mother, and the child, in which
 

 
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 1           the father and child relationship is not determined but
 
 2           in which a defined economic obligation is undertaken by
 
 3           the alleged father in favor of the child and, if
 
 4           appropriate, in favor of the mother, subject to
 
 5           approval by the judge conducting the hearing.  In
 
 6           reviewing the obligation undertaken by the alleged
 
 7           father in a compromise agreement, the judge conducting
 
 8           the hearing shall consider the best interest of the
 
 9           child, in the light of the factors enumerated in
 
10           section 576D-7, discounted by the improbability, as it
 
11           appears to him, of establishing the alleged father's
 
12           paternity or nonpaternity of the child in a trial of
 
13           the action.  In the best interest of the child, the
 
14           court may order that the alleged father's identity be
 
15           kept confidential.  In that case, the court may
 
16           designate a person or agency to receive from the
 
17           alleged father and disburse on behalf of the child all
 
18           amounts paid by the alleged father in fulfillment of
 
19           obligations imposed on him; [or]
 
20      (3)  That the alleged father voluntarily acknowledge his
 
21           paternity of the child[.]; or
 
22      (4)  That the child is the natural child of a married woman
 
23           and a man to whom she is not married, and that the
 

 
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 1           husband of the marriage is entitled to all rights
 
 2           toward the child as though he was the child's natural
 
 3           father and that the natural father of the child is
 
 4           entitled to no rights toward the child while the
 
 5           marriage is intact; and providing that the husband of
 
 6           the marriage is entitled to reimbursement from the
 
 7           natural father for child support paid for the child
 
 8           from the time of the child's birth."
 
 9      SECTION 4.  Section 584-14, Hawaii Revised Statutes, is
 
10 amended by amending subsections (a) and (b) to  read as follows:
 
11      "(a)  An action under this chapter shall be a civil action
 
12 governed by the Hawaii Rules of Civil Procedure or the Hawaii
 
13 Family Court Rules.  The mother of the child, the husband of a
 
14 marriage into which the child was born, and the alleged father
 
15 shall be competent to testify and may be compelled to testify,
 
16 provided that no criminal prosecution, other than a prosecution
 
17 for perjury, shall afterwards be had against the mother, the
 
18 husband of a marriage into which the child was born, or the
 
19 alleged father for or on account of any transaction, matter, or
 
20 thing concerning which she or he may testify or produce evidence,
 
21 documentary or otherwise.  Sections 584-11 and 584-12 shall apply
 
22 in any action brought under this chapter.
 
23      (b)  Testimony relating to sexual access to the mother by an
 

 
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 1 unidentified man at any time or by an identified man at a time
 
 2 other than the probable time of conception of the child shall be
 
 3 inadmissible in evidence, unless offered by the mother.
 
 4 Testimony relating to sexual access to the mother during the
 
 5 probable time of conception of the child by a person whom the
 
 6 husband of the marriage is alleging as the natural father of the
 
 7 child for the purposes of the husband's claim against the natural
 
 8 father for reimbursement of child support under section 584-   
 
 9 shall be admissible."
 
10      SECTION 5.  Section 584-15, Hawaii Revised Statutes, is
 
11 amended by amending subsections (c), (d), and (3) to read as
 
12 follows:
 
13      "(c)  The judgment or order may contain any other provision
 
14 directed against the appropriate party to the proceeding,
 
15 concerning the duty of support, the custody and guardianship of
 
16 the child, visitation privileges with the child, the furnishing
 
17 of bond or other security for the payment of the judgment,
 
18 reimbursement required under section 584-   , or any other matter
 
19 in the best interest of the child.  Upon neglect or refusal to
 
20 give this security, or upon default of the father or the father's
 
21 surety in compliance with the terms of the judgment, the court
 
22 may order the forfeiture of any such security and the application
 
23 of the proceeds thereof toward the payment of any sums due under
 

 
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 1 the terms of the judgment and may also sequester the father's
 
 2 personal estate, and the rents and profits of the father's real
 
 3 estate, and may appoint a receiver thereof, and may cause the
 
 4 father's personal estate, including any salaries, wages,
 
 5 commissions, or other moneys owed to him and the rents and
 
 6 profits of his real estate, to be applied toward the meeting of
 
 7 the terms of the judgment, to the extent that the court, from
 
 8 time to time, deems just and reasonable.  The judgment or order
 
 9 may direct the father to pay the reasonable expenses of the
 
10 mother's pregnancy and confinement, including but not limited to
 
11 medical insurance premiums, such as for MedQuest, which cover the
 
12 periods of pregnancy, childbirth, and confinement.  The court may
 
13 further order the noncustodial parent to reimburse the custodial
 
14 parent, the child, or any public agency for reasonable expenses
 
15 incurred prior to entry of judgment, including support,
 
16 maintenance, education, and funeral expenses expended for the
 
17 benefit of the child.
 
18      (d)  Support judgment or orders ordinarily shall be for
 
19 periodic payments which may vary in amount.  In the best interest
 
20 of the child, or, for reimbursements under section 584-   , a
 
21 lump sum payment or the purchase of an annuity may be ordered in
 
22 lieu of periodic payments of support.  The court may limit the
 
23 father's liability for past support of the child to the
 

 
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 1 proportion of the expenses already incurred that the court deems
 
 2 just.  
 
 3      (e)  In determining the amount to be paid by a parent for
 
 4 support of the child or for reimbursement under section 584-   ,
 
 5 and the period during which the duty of support is owed, a court
 
 6 enforcing the obligation of support shall use the guidelines
 
 7 established under section 576D-7.  Provision may be made for the
 
 8 support, maintenance, and education of an adult or minor child
 
 9 and an incompetent adult child, whether or not the petition is
 
10 made before or after the child has attained the age of majority."
 
11      SECTION 6.  Section 584-24, Hawaii Revised Statutes, is
 
12 amended to read as follows:
 
13      "[[]584-24[]]  Custodial proceedings.(a)  If a mother
 
14 relinquishes or proposes to relinquish for adoption a child who
 
15 has: 
 
16      (1)  A presumed father under section 584-4(a); 
 
17      (2)  A father whose relationship to the child has been
 
18           determined by a court; [or] 
 
19      (3)  A father as to whom the child is a legitimate child
 
20           under prior law of this State or under the law of
 
21           another jurisdiction[;]; or
 
22      (4)  A husband who has been determined in court not to be
 

 
 
 
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 1           the natural father of the child, although the child was
 
 2           born during the course of the marriage, who still wants
 
 3           to retain parental ties to the child; 
 
 4 the father or husband shall be given notice of the adoption
 
 5 proceeding and have the rights provided under chapter 578, unless
 
 6 the father's or husband's relationship to the child has been
 
 7 previously terminated or determined by a court not to exist. 
 
 8      (b)  If a mother relinquishes or proposes to relinquish for
 
 9 adoption a child who does not have: 
 
10      (1)  A presumed father under section 584-4(a); 
 
11      (2)  A father whose relationship to the child has been
 
12           determined by a court; [or] 
 
13      (3)  A father as to whom the child is a legitimate child
 
14           under prior law of this State or under the law of
 
15           another jurisdiction; or
 
16      (4)  A husband who has been determined in court not to be
 
17           the natural father of the child, although the child was
 
18           born during the course of the marriage, who still wants
 
19           to retain parental ties to the child;
 
20 or if a child otherwise becomes the subject of an adoption
 
21 proceeding, the court shall determine whether the natural father
 
22 has exercised parental duties, obligations, and concern for the
 
23 child in accordance with subsection (c); provided that if the
 

 
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 1 proposed adoptive parent is the spouse of the child's mother, no
 
 2 notice is required to be given to a father who does not fall
 
 3 within the provisions of subsection (a). 
 
 4      (c) In order to determine the extent of the natural father's
 
 5 exercise of parental duties, obligations, and concern for the
 
 6 child, the court shall cause inquiry to be made of the mother and
 
 7 any other appropriate person.  The inquiry shall include the
 
 8 following: 
 
 9      (1)  Whether the mother was married at the time of
 
10           conception of the child or at any time thereafter; 
 
11      (2)  Whether, at the time of conception or birth of the
 
12           child thereafter, the mother was cohabiting with a man
 
13           whom she alleges to be or who represents or believes
 
14           himself to be the child's father; 
 
15      (3)  Whether the mother has received support payments or
 
16           promises of support with respect to the child or in
 
17           connection with her pregnancy or in connection with the
 
18           birth of the child[.]; and
 
19      (4)  Whether the husband of the marriage in which the
 
20           natural father's child was born has brought suit for
 
21           reimbursement of child support under section 584-   . 
 
22      (d)  If, after the inquiry, the court is satisfied that the
 
23 natural father has exercised parental duties, obligations, and
 

 
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 1 concern for the child, he shall be given notice of the proceeding
 
 2 in accordance with subsection (f).  If he fails to appear or, if
 
 3 appearing, fails to claim custodial rights, his parental rights
 
 4 with reference to the child shall be terminated.  If the natural
 
 5 father or a man representing himself to be the natural father,
 
 6 claims custodial rights, the court shall proceed to determine
 
 7 custodial rights. 
 
 8      (e)  If, after the inquiry, the court is satisfied that the
 
 9 natural father has failed to exercise parental duties,
 
10 obligations, and concern for the child the court shall enter an
 
11 order terminating the natural father's parental rights with
 
12 reference to the child[.]; provided that the obligation of a
 
13 natural father to reimburse the husband under section 584-   
 
14 shall not be considered as exercising any parental duties under
 
15 this subsection.  Subject to the disposition of an appeal, upon
 
16 the expiration of thirty days after an order terminating parental
 
17 rights is issued under this subsection, the order shall not be
 
18 questioned by any person, in any manner, or upon any ground,
 
19 including fraud, misrepresentation, failure to give any required
 
20 notice, or lack of jurisdiction of the parties or of the subject
 
21 matter. 
 
22      (f)  Notice of the proceeding shall be given to any person
 
23 who is entitled under the provisions of this chapter to receive
 

 
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 1 notice in the manner appropriate under chapter 578.  Proof of
 
 2 giving the notice shall be filed with the court before the
 
 3 petition is heard."
 
 4      SECTION 7.  Statutory material to be repealed is bracketed.
 
 5 New statutory material is underscored.
 
 6      SECTION 8.  This Act shall take effect upon its approval.
 
 7 
 
 8                           INTRODUCED BY:  _______________________