HB 1377

Report Title:

Paternity

Description:

Provides for reimbursement of husband of marriage with a child from the child's natural father.

HOUSE OF REPRESENTATIVES	H.B. NO.	1377
TWENTY-FIRST LEGISLATURE, 2001
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO PATERNITY.

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

SECTION 1. Chapter 584, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§584- Child born to a married woman and an unmarried man; rights of the husband of the marriage. In the situation where another man has fathered a child of a married couple, the husband of the marriage has the following rights:

(1) To sue, in the family court, the natural father for reimbursement for any child support paid by the husband of the marriage for the child going back to birth for the child; and

(2) To retain all parental rights as though he were the natural father of the child.

The natural father of the child shall have no parental rights in regard to the child, including visitation rights, unless the parties to the marriage are divorced, the biological father is not a rapist, and the husband of the former marriage is not involved with the child, and the natural father can prove to a court of law that it is in the best interests of the child."

SECTION 2. Section 584-1, Hawaii Revised Statutes, is amended to read as follows:

"[[]§584-1[]] Parent and child relationship defined. As used in this chapter, "parent and child relationship" includes the legal relationship existing between [a]:

(1) A child and the child's natural mother[~~, between a~~];

(2) A child and father whose relationship as parent and child is established under this chapter[,];

(3) A child and the husband of a marriage when the child is born during the course of the marriage regardless of whether the child is the natural child of the husband; or [~~between~~]

(4) A child and the child's adoptive parents, incident to which the law confers or imposes rights, privileges, duties, and obligations."

SECTION 3. Section 584-13, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) On the basis of the information produced at the pre-trial hearing, the judge conducting the hearing shall evaluate the probability of determining the existence or nonexistence of the father and child relationship in a trial and whether a judicial declaration of the relationship would be in the best interest of the child. On the basis of the evaluation, an appropriate recommendation for settlement shall be made to the parties, which may include any of the following:

(1) That the action be dismissed with or without prejudice;

(2) That the matter be compromised by an agreement among the alleged father, the mother, and the child, in which the father and child relationship is not determined but in which a defined economic obligation is undertaken by the alleged father in favor of the child and, if appropriate, in favor of the mother, subject to approval by the judge conducting the hearing. In reviewing the obligation undertaken by the alleged father in a compromise agreement, the judge conducting the hearing shall consider the best interest of the child, in the light of the factors enumerated in section 576D-7, discounted by the improbability, as it appears to him, of establishing the alleged father's paternity or nonpaternity of the child in a trial of the action. In the best interest of the child, the court may order that the alleged father's identity be kept confidential. In that case, the court may designate a person or agency to receive from the alleged father and disburse on behalf of the child all amounts paid by the alleged father in fulfillment of obligations imposed on him; or

(3) That the alleged father voluntarily acknowledge his paternity of the child[.]; or

(4) That the child is the natural child of a married woman and a man to whom she is not married, and that the husband of the marriage is entitled to all rights toward the child as though he was the child's natural father and that the natural father of the child is entitled to no rights toward the child while the marriage is intact; and providing that the husband of the marriage is entitled to reimbursement from the natural father for child support paid for the child from the time of the child's birth."

SECTION 4. Section 584-14, Hawaii Revised Statutes, is amended by amending subsection (a) and (b) to read as follows:

"(a) An action under this chapter shall be a civil action governed by the Hawaii Rules of Civil Procedure or the Hawaii Family Court Rules. The mother of the child, the husband of a marriage into which the child was born, and the alleged father shall be competent to testify and may be compelled to testify, provided that no criminal prosecution, other than a prosecution for perjury, shall afterwards be had against the mother or the alleged father for or on account of any transaction, matter, or thing concerning which she or he may testify or produce evidence, documentary or otherwise. Sections 584-11 and 584-12 shall apply in any action brought under this chapter.

(b) Testimony relating to sexual access to the mother by an unidentified man at any time or by an identified man at a time other than the probable time of conception of the child shall be inadmissible in evidence, unless offered by the mother. Testimony relating to sexual access to the mother during the probable time of conception of the child by a person whom the husband of the marriage is alleging as the natural father of the child for the purposes of the husband's claim against the natural father for reimbursement of child support under section 584- shall be admissible."

SECTION 5. Section 584-15, Hawaii Revised Statutes, is amended by amending subsections (c), (d), and (e) to read as follows:

"(c) The judgment or order may contain any other provision directed against the appropriate party to the proceeding, concerning the duty of support, the custody and guardianship of the child, visitation privileges with the child, the furnishing of bond or other security for the payment of the judgment, reimbursement required under section 584- , or any other matter in the best interest of the child. Upon neglect or refusal to give this security, or upon default of the father or the father's surety in compliance with the terms of the judgment, the court may order the forfeiture of any such security and the application of the proceeds thereof toward the payment of any sums due under the terms of the judgment and may also sequester the father's personal estate, and the rents and profits of the father's real estate, and may appoint a receiver thereof, and may cause the father's personal estate, including any salaries, wages, commissions, or other moneys owed to him and the rents and profits of his real estate, to be applied toward the meeting of the terms of the judgment, to the extent that the court, from time to time, deems just and reasonable. The judgment or order may direct the father to pay the reasonable expenses of the mother's pregnancy and confinement, including but not limited to medical insurance premiums, such as for MedQuest, which cover the periods of pregnancy, childbirth, and confinement. The court may further order the noncustodial parent to reimburse the custodial parent, the child, or any public agency for reasonable expenses incurred prior to entry of judgment, including support, maintenance, education, and funeral expenses expended for the benefit of the child.

(d) Support judgment or orders ordinarily shall be for periodic payments which may vary in amount. In the best interest of the child, or for reimbursements under section 584- , a lump sum payment or the purchase of an annuity may be ordered in lieu of periodic payments of support. The court may limit the father's liability for past support of the child to the proportion of the expenses already incurred that the court deems just.

(e) In determining the amount to be paid by a parent for support of the child or for reimbursement under section 584- , and the period during which the duty of support is owed, a court enforcing the obligation of support shall use the guidelines established under section 576D-7. Provision may be made for the support, maintenance, and education of an adult or minor child and an incompetent adult child, whether or not the petition is made before or after the child has attained the age of majority."

SECTION 6. Section 584-24, Hawaii Revised Statutes, is amended to read as follows:

"[[]§584-24[]] Custodial proceedings. (a) If a mother relinquishes or proposes to relinquish for adoption a child who has:

(1) A presumed father under section 584-4(a);

(2) A father whose relationship to the child has been determined by a court; [or]

(3) A father as to whom the child is a legitimate child under prior law of this State or under the law of another jurisdiction; or

(4) A husband who has been determined in court not to be the natural father of the child, although the child was born during the course of the marriage, who still wants to retain parental ties to the child;

the father or husband shall be given notice of the adoption proceeding and have the rights provided under chapter 578, unless the father's or husband's relationship to the child has been previously terminated or determined by a court not to exist.

(b) If a mother relinquishes or proposes to relinquish for adoption a child who does not have:

(1) A presumed father under section 584-4(a);

(2) A father whose relationship to the child has been determined by a court; [or]

(3) A father as to whom the child is a legitimate child under prior law of this State or under the law of another jurisdiction; or

or if a child otherwise becomes the subject of an adoption proceeding, the court shall determine whether the natural father has exercised parental duties, obligations, and concern for the child in accordance with subsection (c); provided that if the proposed adoptive parent is the spouse of the child's mother, no notice is required to be given to a father who does not fall within the provisions of subsection (a).

(c) In order to determine the extent of the natural father's exercise of parental duties, obligations, and concern for the child, the court shall cause inquiry to be made of the mother and any other appropriate person. The inquiry shall include the following:

(1) Whether the mother was married at the time of conception of the child or at any time thereafter;

(2) Whether, at the time of conception or birth of the child thereafter, the mother was cohabiting with a man whom she alleges to be or who represents or believes himself to be the child's father;

(3) Whether the mother has received support payments or promises of support with respect to the child or in connection with her pregnancy or in connection with the birth of the child[.]; and

(4) Whether the husband of the marriage in which the natural father's child was born has brought suit for reimbursement of child support under section 584- .

(d) If, after the inquiry, the court is satisfied that the natural father has exercised parental duties, obligations, and concern for the child, he shall be given notice of the proceeding in accordance with subsection (f). If he fails to appear or, if appearing, fails to claim custodial rights, his parental rights with reference to the child shall be terminated. If the natural father or a man representing himself to be the natural father, claims custodial rights, the court shall proceed to determine custodial rights.

(e) If, after the inquiry, the court is satisfied that the natural father has failed to exercise parental duties, obligations, and concern for the child the court shall enter an order terminating the natural father's parental rights with reference to the child[.]; provided that the obligation of a natural father to reimburse the husband under section 584- shall not be considered as exercising any parental duties under this subsection. Subject to the disposition of an appeal, upon the expiration of thirty days after an order terminating parental rights is issued under this subsection, the order shall not be questioned by any person, in any manner, or upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter.

(f) Notice of the proceeding shall be given to any person who is entitled under the provisions of this chapter to receive notice in the manner appropriate under chapter 578. Proof of giving the notice shall be filed with the court before the petition is heard."

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________