STAND. COM. REP. NO. 1229

Honolulu, Hawaii

, 2005

RE: H.B. No. 1378

H.D. 1

S.D. 1

 

 

Honorable Robert Bunda

President of the Senate

Twenty-Third State Legislature

Regular Session of 2005

State of Hawaii

Sir:

Your Committee on Judiciary and Hawaiian Affairs, to which was referred H.B. No. 1378, H.D. 1, entitled:

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

begs leave to report as follows:

The purpose of this measure is to amend Hawaii's temporary restraining order (TRO) and protective order (PO) laws.

Specifically, this measure:

(1) Mandates the disclosure of a pending divorce, separation, annulment, maintenance, or any other Family Court proceeding on a petition for a TRO or PO;

(2) Requires that a petition for a PO or TRO be filed in any ongoing suit for divorce or a child custody proceeding between the parties and that any finding of fact or ruling made in connection with granting or denying a PO or TRO shall not be res judicata or collateral estoppel in a subsequent proceeding between the parties;

(3) Allows, but does not require, documentation such as medical or police records be submitted along with a petition for a TRO and permits a judge to meet in camera with the petitioner prior to granting or denying a TRO petition;

(4) Permits a court to allow supervised visitation of children shared by the petitioner and respondent even after a TRO petition has been granted provided that the children are not named in the TRO petition and visitation is in the children's best interests; and

(5) Requires a court to make findings of fact in granting a petition for a TRO.

Testimony in support of this measure was submitted by the Office of the Public Defender, the Legal Aid Society of Hawaii, the Children's Rights Council, and six individuals. The Hawaii State Coalition Against Domestic Violence and the Department of the Prosecuting Attorney for the City and County of Honolulu testified in opposition to the measure. The Judiciary offered comments on the measure.

This measure amends provisions of Hawaii's TRO and PO laws. Your Committee finds that many of these amendments to the TRO and PO statutes are the result of the work of the Senate Resolution 40 Task Force members who analyzed these issues and proposed changes to the manner in which TRO and PO petitions are adjudicated.

Your Committee has amended this measure by:

(1) Specifying that abuse allegations to support a PO or TRO involve actual physical abuse or threats of physical abuse that would likely result in actual physical abuse;

(2) Removing provisions authorizing the Family Court to designate an employee or appropriate non-judicial agency to assist a petitioner in completing the petition for a PO;

(3) Making it discretionary for a petition for a PO or TRO to be filed in the same divorce, child custody, or other Family Court proceeding between the parties;

(4) Deleting language that permitted documentation to be submitted along with a petition for a TRO;

(5) Endowing a Family Court judge with the discretionary authority to meet in camera with the a TRO petition if that judge deems it appropriate; and

(6) Requiring a Family Court judge to include a concise written statement providing a factual basis for issuing the TRO as opposed to making specific findings of fact.

As affirmed by the record of votes of the members of your Committee on Judiciary and Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 1378, H.D. 1, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 1378, H.D. 1, S.D. 1, and be referred to the Committee on Ways and Means.

Respectfully submitted on behalf of the members of the Committee on Judiciary and Hawaiian Affairs,

____________________________

COLLEEN HANABUSA, Chair