Honorable Robert Bunda

President of the Senate

Twenty-First State Legislature

Regular Session of 2001

State of Hawaii

Sir:

Your Committee on Judiciary, to which was referred S.B. No. 66 entitled:

begs leave to report as follows:

The purpose of this measure is to require the family court to make a written order explaining the reasons for awarding custody of a child to the perpetrator of family violence.

Your Committee received testimony in support of this measure from the Honolulu Prosecuting Attorney, Domestic Violence Clearinghouse and Legal Hotline, Hawai'i State Coalition Against Domestic Violence, YWCA of Kauai, and four private citizens. The Judiciary submitted comments on this measure.

Current law provides that if a court makes a determination that family violence has been committed by a parent, a rebuttable presumption arises that it is detrimental to the child and not in the best interest of the child to be placed in the custody of the abusive spouse or parent. Your Committee believes that, generally, an abusive spouse or parent should not gain custody of a child. Therefore, if a court determines that the child should be placed with an abusive parent, the court should make written findings to justify its decision.

Your Committee is cognizant of the family court's concern that this measure would lead to a delay in issuing a written order, particularly in light of the caseload of the courts. However, your Committee believes that the protection of the child is best served by a well-reasoned court order. Moreover, your Committee does not believe that such custody awards could be so prevalent that a family court judge would not be able to issue an expeditious order with the required findings under this measure. It is the intent of your Committee that the court have evident, specific, and articulable grounds for granting such custody awards.

The intent of your Committee is not to interfere with visitation rights, which are distinct from custody rights. This measure applies only to custody orders and should not be used as a basis for determining visitation rights.

Your Committee has amended this measure by clarifying that the court is required to make written findings describing the grounds for rebutting the presumption and how the award serves the best interest of the child.

As affirmed by the record of votes of the members of your Committee on Judiciary that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 66, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 66, S.D. 1, and be placed on the calendar for Third Reading.