STAND

STAND. COM. REP. NO. 543

Honolulu, Hawaii

, 2005

RE: H.B. No. 1378

H.D. 1

Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Third State Legislature

Regular Session of 2005

State of Hawaii

Sir:

Your Committee on Judiciary, to which was referred H.B. No. 1378 entitled:

"A BILL FOR AN ACT RELATING TO THE JUDICIARY,"

begs leave to report as follows:

The purpose of this bill is to improve family court proceedings by amending the temporary restraining order (TRO) and protective order process. Specifically, this bill:

(1) Limits TRO orders to cases involving past acts of physical abuse or imminent physical abuse;

(2) Requires TRO and protective order petitions to disclose any divorce, separation, annulment, separate maintenance, or any other proceeding involving child custody that is pending between the parties;

(3) Requires the family court to contract with a nonjudicial agency to screen protective order petitions, and appropriates funds for this purpose;

(4) Requires a judge considering a TRO application to meet in camera with the petitioner to evaluate the petitioner's allegations;

(5) Requires a judge to make findings of fact for granting a TRO petition;

(6) Provides that TRO protections shall apply to family or household members only if the allegations in the petition constitute the offense of abuse of a family or household member, sexual offenses, or child abuse;

(7) Allows supervised visitation after the issuance of a TRO for petitioners and respondents that have children together, if the children are not named in the TRO petition and if supervised visitation is in the child's best interest;

(8) Provides that any findings of fact relating to a TRO or protective order are not binding on any other family court proceedings; and

(9) Establishes a mandatory continuing legal education program for all active judges, including per diem judges, and appropriates funds for this purpose.

The Office of the Public Defender, Children Rights Council of Hawaii, and two concerned individuals testified in support of this bill. The Department of the Prosecuting Attorney of the City and County of Honolulu, Hawaii State Coalition Against Domestic Violence, Legal Aid Society of Hawaii, Na Loio Immigrant Rights and Public Interest Legal Center, and VOICES: The Battered Women's Caucus of Hawaii, Oahu Chapter, opposed this measure. The Judiciary and Domestic Violence Clearinghouse and Legal Hotline offered comments.

Your Committee finds that while the amendments proposed in this bill are aimed at improving the processes for TRO and protective order applications, numerous concerns and suggestions regarding this measure have been raised and merit further discussion.

Accordingly, your Committee has amended this bill by:

(1) Eliminating the provisions on mandatory continuing legal education for all active judges and funding for this purpose;

(2) Removing the requirement that the family court contract with a nonjudicial agency to screen petitions for protective orders, and removing funding for this purpose;

(3) Restoring the types of allegations that may be made in TRO petitions, by removing the limitation that the alleged abuse must be physical;

(4) Removing inadvertent references to "physical abuse" in provisions regarding protective orders;

(5) Removing the provision that a TRO applies to family or household members only if the allegations of the petition involve the offense of abuse of a family or household member, a sexual offense, or child abuse;

(6) Making it discretionary for a judge to meet in camera with a petitioner for a TRO to determine the merit of the petitioner's allegations;

(7) Clarifying that findings of fact relating to a petition for a TRO or protective order are not binding on other family court proceedings, including child custody determinations, in which the court determines the petition for a TRO or protective order was filed to gain an advantage in the family court proceeding;

(8) Adding a defective date to facilitate further discussion; and

(9) Making technical, nonsubstantive amendments for clarity and style.

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 H.B. No. 1378, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 1378, H.D. 1, and be referred to the Committee on Finance.

Respectfully submitted on behalf of the members of the Committee on Judiciary,

		____________________________ SYLVIA LUKE, Chair