HB2155

Report Title:

Children; Separation and Divorce

Description:

Requires court to consider "parental alienation syndrome" in awarding custody of children. Requires parents who separate to attend court educational program designed to help parents understand the effects of separation and divorce on their children and to help children cope with changes in their families. Amends the definition of "harm" to include "parental alienation syndrome".

HOUSE OF REPRESENTATIVES	H.B. NO.	2155
TWENTY-THIRD LEGISLATURE, 2006
STATE OF HAWAII

A BILL FOR AN ACT

RELATING to parental alienation.

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

SECTION 1. The legislature finds that "parental alienation syndrome" is a disorder that arises primarily in the context of child custody disputes, is manifested primarily in a child's campaign of unjustified denigration of one parent, and is caused by one parent's attempts to turn the child against the other parent. Although there are numerous signs of parental alienation syndrome, the most common include one parent giving or even forcing the child to choose between living with one parent or the other, often in reaction to the child's expression of love for or having a good time with the other parent, telling the child details of or blaming the other parent for the breakup, and even using the child to covertly gather information about the other parent for the parent's own use. Signs of parental alienation syndrome also include resisting or refusing to permit the other parent access to critical records or attendance at school activities, arranging temptations or scheduling activities that interfere with the other parent's visitation, and making demands on the other parent that are contrary to court orders.

The purpose of this Act is to prevent or stop "parental alienation syndrome" by requiring all separating parents and their children to attend a court-supervised educational program designed to teach parents how to minimize the negative effects of separation on children and receive information on mediation, counseling and other treatment programs, and child development. This Act also recognizes "parental alienation syndrome" as a form of harm that the courts must consider in making custody decisions.

SECTION 2. Section 571-46, Hawaii Revised Statutes, is amended to read as follows:

"§571-46 Criteria and procedure in awarding custody and visitation. In the actions for divorce, separation, annulment, separate maintenance, or any other proceeding where there is at issue a dispute as to the custody of a minor child, the court, during the pendency of the action, at the final hearing, or any time during the minority of the child, may make an order for the custody of the minor child as may seem necessary or proper. In awarding the custody, the court shall be guided by the following standards, considerations, and procedures:

(1) Custody should be awarded to either parent or to both parents according to the best interests of the child, and the court may also consider frequent, continuing, and meaningful contact of each parent with the child unless the court finds that a parent is unable to act in the best interest of the child;

(2) Custody may be awarded to persons other than the father or mother whenever the award serves the best interest of the child. Any person who has had de facto custody of the child in a stable and wholesome home and is a fit and proper person shall be entitled prima facie to an award of custody;

(3) If a child is of sufficient age and capacity to reason, so as to form an intelligent preference, the child's wishes as to custody shall be considered and be given due weight by the court;

(4) Whenever good cause appears therefor, the court may require an investigation and report concerning the care, welfare, and custody of any minor child of the parties. When so directed by the court, investigators or professional personnel attached to or assisting the court shall make investigations and reports which shall be made available to all interested parties and counsel before hearing, and the reports may be received in evidence if no objection is made and, if objection is made, may be received in evidence; provided the person or persons responsible for the report are available for cross-examination as to any matter that has been investigated;

(5) The court may hear the testimony of any person or expert, produced by any party or upon the court's own motion, whose skill, insight, knowledge, or experience is such that the person's or expert's testimony is relevant to a just and reasonable determination of what is for the best physical, mental, moral, and spiritual well-being of the child whose custody is at issue;

(6) Any custody award shall be subject to modification or change whenever the best interests of the child require or justify the modification or change and, wherever practicable, the same person who made the original order shall hear the motion or petition for modification of the prior award;

(7) Reasonable visitation rights shall be awarded to parents, grandparents, siblings, and any person interested in the welfare of the child in the discretion of the court, unless it is shown that rights of visitation are detrimental to the best interests of the child;

(8) The court may appoint a guardian ad litem to represent the interests of the child and may assess the reasonable fees and expenses of the guardian ad litem as costs of the action, payable in whole or in part by either or both parties as the circumstances may justify;

(9) In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that family violence has been committed by a parent raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence. In addition to other factors that a court must consider in a proceeding in which the custody of a child or visitation by a parent is at issue, and in which the court has made a finding of family violence by a parent:

(A) The court shall consider as the primary factor the safety and well-being of the child and of the parent who is the victim of family violence;

(B) The court shall consider the perpetrator's history of causing physical harm, bodily injury, or assault or causing reasonable fear of physical harm, bodily injury, or assault to another person; and

(C) If a parent is absent or relocates because of an act of family violence by the other parent, the absence or relocation shall not be a factor that weighs against the parent in determining custody or visitation;

(10) A court may award visitation to a parent who committed family violence only if the court finds that adequate provision can be made for the physical safety and psychological well-being of the child and for the safety of the parent who is a victim of family violence;

(11) In a visitation order, a court may:

(A) Order an exchange of a child to occur in a protected setting;

(B) Order visitation supervised by another person or agency;

(C) Order the perpetrator of family violence to attend and complete, to the satisfaction of the court, a program of intervention for perpetrators or other designated counseling as a condition of the visitation;

(D) Order the perpetrator of family violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and for twenty-four hours preceding the visitation;

(E) Order the perpetrator of family violence to pay a fee to defray the costs of supervised visitation;

(F) Prohibit overnight visitation;

(G) Require a bond from the perpetrator of family violence for the return and safety of the child. In determining the amount of the bond, the court shall consider the financial circumstances of the perpetrator of family violence;

(H) Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of family violence, or other family or household member; and

(I) Order the address of the child and the victim to be kept confidential;

(12) The court may refer but shall not order an adult who is a victim of family violence to attend, either individually or with the perpetrator of the family violence, counseling relating to the victim's status or behavior as a victim as a condition of receiving custody of a child or as a condition of visitation;

(13) If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation; and

(14) A supervised visitation center [~~must~~] shall provide: a secure setting and specialized procedures for supervised visitation and the transfer of children for visitation and supervision by a person trained in security and the avoidance of family violence[.];

(15) In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that a parent has engaged in conduct causing the child to manifest parental alienation syndrome raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with that parent. For purposes of this section, "parental alienation syndrome" means the child's obsessive preoccupation with unjustified or exaggerated criticism of a parent caused by one parent's attempts to turn the child against the other parent including, but not limited to, the parent:

(A) Giving the child a choice to or forcing the child to choose between living with one parent or the other, often in reaction to the child's expression of love for or having a good time with the other parent;

(B) Telling the child details of or blaming the other parent for the breakup and using the child to covertly gather information about the other parent for the parent's own use;

(D) Arranging temptations or scheduling activities that interfere with the other parent's visitation; or

(E) Making demands on the other parent that are contrary to court orders; and

(16) A court may award visitation to a parent who caused the child to manifest parental alienation syndrome only if the court finds that adequate provision can be made for the psychological well-being of the child and may impose any condition on the visitation that is deemed necessary to provide for the psychological well-being of the child, including, but not limited to, requiring the parent to attend and complete, to the satisfaction of the court, a program of intervention or other designated counseling."

SECTION 3. Section 577-7, Hawaii Revised Statutes, is amended to read as follows:

"§577-7 Parents' control and duties. (a) Parents or, in case they are both deceased, guardians, legally appointed, shall have control over the conduct and education of their minor children. They shall have the right, at all times, to recover the physical custody of their children by habeas corpus. All parents and guardians shall provide, to the best of their abilities, for the discipline, support, and education of their children.

(b) To the extent that the minor child has a beneficial interest in the income or principal of any trust [~~which~~] that is applied for such purposes, parents or guardians shall not be required to pay the costs of registration, tuition, books, room and board, and other expenses incurred in connection with the attendance of a minor child at any private grammar, secondary, industrial arts, or trade school, or at any college or university, regardless of whether [~~or not~~] the college or university is a private institution or is maintained by a state or any subdivision thereof. The power of the family court under sections 580-47 and 580-74 to compel the parties to a divorce or separation to provide for the education of a minor or an adult child shall not be limited by any provision of this subsection.

(c) Parents or guardians who separate, regardless of whether incident to an action filed pursuant to chapter 580, and their children shall attend whatever educational programs are offered to or required by the family court for parents, and their children, who are parties to an action filed pursuant to chapter 580, provided the programs are designed to teach parents how to minimize the negative effects of separation on children, provide information on mediation, counseling and other treatment programs, and child development, and help children cope with changes in their families."

SECTION 4. Section 587-2, Hawaii Revised Statutes, is amended by amending the definition of "harm to read as follows:

""Harm" to a child's physical or psychological health or welfare occurs in a case where there exists evidence of injury, including, but not limited to:

(1) Any case where the child exhibits evidence of:

(A) Substantial or multiple skin bruising or any other internal bleeding,

(B) Any injury to skin causing substantial bleeding,

(D) Failure to thrive,

(E) Burn or burns,

(F) Poisoning,

(G) Fracture of any bone,

(H) Subdural hematoma,

(I) Soft tissue swelling,

(J) Extreme pain,

(K) Extreme mental distress,

(L) Gross degradation, or

(M) Death, and

the injury is not justifiably explained, or where the history given concerning the condition or death is at variance with the degree or type of the condition or death, or circumstances indicate that the condition or death may not be the product of an accidental occurrence;

(2) Any case where the child has been the victim of: sexual contact or conduct, including, but not limited to, rape, sodomy, molestation, sexual fondling, incest, prostitution; obscene or pornographic photographing, filming, or depiction; or other similar forms of sexual exploitation;

(3) Any case where there exists injury to the psychological capacity of a child as is evidenced by a substantial impairment in the child's ability to function;

(4) Any case where the child is not provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision; [or]

(5) Any case where the child is provided with dangerous, harmful, or detrimental drugs as defined by section 712-1240; however, this paragraph shall not apply to a child's family who provide the drugs to the child pursuant to the direction or prescription of a practitioner, as defined in section 712-1240[.]; or

(6) Any case where the child manifests parental alienation syndrome by obsessive preoccupation with unjustified or exaggerated criticism of a parent caused by one parent's attempts to turn the child against the other parent including, but not limited to, the parent:

(B) Telling the child details of or blaming the other parent for the breakup or using the child to covertly gather information about the other parent for the parent's own use;

(D) Arranging temptations or scheduling activities that interfere with the other parent's visitation; or

(E) Making demands on the other parent that are contrary to court orders."

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________