Amends the TRO and PO process to require the disclosure of a pending family court proceeding; establishes that any findings relating to the granting or denying of a TRO or PO is not binding on a subsequent family court case. Requires newly appointed judges to attend continuing legal education classes.

A BILL FOR AN ACT

SECTION 1. In the 2004 legislative session, the senate adopted Senate Resolution 40. This resolution authorized the senate committee on human services to convene interim hearings on the Hawaii family court. Specifically, the hearings were designed to explore ways to make the Hawaii family court more accessible and family oriented. These interim hearings focused on important issues relating to reduction in caseload, limiting the long-term use of interventions such as temporary restraining orders and protective orders, ensuring greater accountability of court-appointed personnel such as custody evaluators and guardians ad litem, and examining ways to reduce needless expenditures of time and money in counterproductive litigation relating to child custody determinations.

During the course of these interim hearings, four task force groups were formed on four important issues relating to joint custody, temporary restraining orders and protective orders, standards for guardians ad litem and other court-appointed personnel, and alternative dispute resolution. After countless hours of hard work and meetings, these four task force groups submitted findings and recommendations to the senate committee on human services that adopted these recommendations.

With respect to the task force assigned to examine the temporary restraining order and protective order process, members found that the due process rights of individuals named in a petition for a temporary restraining order were implicated in two ways. First, the respondent was not given a hearing to contest the allegations underlying the petition. Second, there was no method or process to verify the accuracy or reliability of the allegations contained in the petition, which meant that some temporary restraining orders and protective orders were being granted on falsified claims of abuse. Moreover, members of this task force, which included family law practitioners and pro se litigants, claimed that litigants utilized the temporary restraining order and protective order process to gain a tactical advantage in subsequent family court proceedings such as divorce and child custody determinations. Based upon their experiences, these individuals reported that there is significant pressure to stipulate to the allegations contained in the petition for a temporary restraining order or protective order, even if false, in order to avoid a finding of family violence which could adversely impact subsequent child custody determinations or divorce proceedings.

The purpose of this Act is to amend the temporary restraining order and protective order process as follows:

SECTION 2. Chapter 601, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§601-   Judicial education. (a) There shall be a mandatory continuing legal education program for all active judges, including per diem judges. This program shall be administered by the chief justice of the Hawaii supreme court.

(b) Each judge shall be required to attend an accredited course or program of instruction twice a year based upon the type of cases that are assigned to that judge.

(c) Newly appointed judges shall be required to attend an accredited course or program of instruction, based upon the type of cases that will be assigned to that judge, prior to presiding over any court proceeding.

(d) For purposes of this section, "accredited course or program of instruction" means a continuing legal education course or program approved by the chief justice."

SECTION 3. Section 586-3, Hawaii Revised Statutes, is amended to read as follows:

"§586-3 Order for protection. (a) There shall exist an action known as a petition for an order for protection in cases of domestic abuse.

(b) A petition for relief under this chapter may be made by:

(c) A petition for relief shall be in writing upon forms provided by the court and shall allege, under penalty of perjury, that: a past act or acts of physical abuse may have occurred; threats of physical abuse make it probable that acts of physical abuse may be imminent; or extreme psychological abuse or malicious property damage is imminent; and be accompanied by an affidavit made under oath or a statement made under penalty of perjury stating the specific facts and circumstances from which relief is sought. The petition shall also disclose to the court the existence of any divorce, separation, annulment, separate maintenance, or any other proceeding involving the custody of a minor child pending between the parties as well as any prior restraining order issued pursuant to section 586-4."

(d) The family court shall:

(e) If a suit for divorce or a child custody proceeding is pending, any application for a protective order shall be filed in that same proceeding. Any decree issued in a divorce or child custody proceeding subsequent to the petition being filed or an order being issued pursuant to this section, in the discretion of the court hearing the divorce or child custody proceeding, may supersede in whole or part the orders issued pursuant to this section. The rendering court shall forward all subsequent decrees relating to the divorce or child custody proceeding to the court having jurisdiction over the petition for a protective order. The findings and rulings made in connection with the granting or denying of a protective order shall not be res judicata or collateral estoppel in any other family court proceeding."

SECTION 4. Section 586-4, Hawaii Revised Statutes, is amended to read as follows:

"§586-4 Temporary restraining order. (a) Upon petition to a family court judge, an ex parte temporary restraining order may be granted without notice to restrain either or both parties from contacting, threatening, or physically abusing each other, notwithstanding that a complaint for annulment, divorce, or separation has not been filed. Documentation in the form of police records, medical or hospital records, or any other public or private record approved by the court, if available, may accompany the petition, but shall not be required by the court. Prior to granting the order, the family court judge shall meet in camera with the petitioner to determine the merit of the petitioner's allegations, examining both the petition and evidence, and determining, based upon a preponderance of the evidence, that the allegations contained in the petition have merit. The order may be granted to any person who, at the time the order is granted, is a family or household member as defined in section 586-1 or who filed a petition on behalf of a family or household member[.], provided that the allegations contained in the petition, with respect to the family or household member, would constitute a prima facie violation of the offense of abuse of a family or household member under section 709-906, any sexual offense under part V of chapter 707, or any child abuse offense under part VI of chapter 707. The order shall enjoin the respondent or person to be restrained from performing any combination of the following acts:

(b) For any person who is alleged to be a family or household member by virtue of a dating relationship, the court may consider the following factors in determining whether a dating relationship exists:

(c) The family court judge may issue the ex parte temporary restraining order orally, if the person being restrained is present in court. The order shall state that there is probable cause to believe that a past act or acts of physical abuse have occurred, or that threats of physical abuse make it probable that acts of physical abuse may be imminent. The order further shall state that the temporary restraining order is necessary for the purposes of: preventing acts of physical abuse or preventing a recurrence of actual domestic abuse; and ensuring a period of separation of the parties involved. The order shall also include findings of fact for granting the petition. The order shall also describe in reasonable detail the act or acts sought to be restrained. Where necessary, the order may require either or both of the parties involved to leave the premises during the period of the order, and also may restrain the party or parties to whom it is directed from contacting, threatening, or physically abusing the applicant's family or household members. The order shall not only be binding upon the parties to the action, but also upon their officers, agents, servants, employees, attorneys, or any other persons in active concert or participation with them. The order shall enjoin the respondent or person to be restrained from performing any combination of the following acts:

(d) Notwithstanding subsection (c), if the petitioner and respondent have a minor child or children together, and the child or children are not named in the petition, the court may permit supervised visitation, pursuant to section 571-46, provided that the supervised visitation is in the child's best interest.

(e) A petition filed under this section shall disclose to the court the existence of any divorce, separation, annulment, separate maintenance, or any other proceeding involving the custody of a minor child pending between the parties.

(f) If a suit for divorce or a child custody proceeding is pending, any application for a temporary restraining order shall be filed in that same proceeding. Any decree issued in a divorce or child custody proceeding subsequent to the petition being filed or an order being issued pursuant to this section, in the discretion of the court hearing the divorce proceeding, may supersede in whole or part the orders issued pursuant to this section. The rendering court shall forward all subsequent decrees relating to the divorce or child custody proceedings to the court having jurisdiction of the petition for a temporary restraining order. The findings and rulings made in connection with the granting or denying of a temporary restraining order shall not be res judicata or collateral estoppel in any other family court proceeding.

[(d)] (g) When a temporary restraining order is granted and the respondent or person to be restrained knows of the order, a knowing or intentional violation of the restraining order is a misdemeanor. A person convicted under this section shall undergo domestic violence intervention at any available domestic violence program as ordered by the court. The court additionally shall sentence a person convicted under this section as follows:

Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.

The court may suspend any jail sentence, except for the mandatory sentences under paragraphs (1) and (2), upon condition that the defendant remain alcohol and drug-free, conviction-free, or complete court-ordered assessments or intervention. Nothing in this section shall be construed as limiting the discretion of the judge to impose additional sanctions authorized in sentencing for a misdemeanor.

[(e)] (h) Any fines collected pursuant to subsection (d) shall be deposited into the spouse and child abuse special account established under section 601-3.6."

SECTION 5. There is appropriated out of the general revenues of the State of Hawaii the sum of $          , or so much thereof as may be necessary for fiscal year 2005-2006, for the purpose of funding a continuing legal education program for all active judges, including per diem judges.

SECTION 6. The sum appropriated shall be expended by the judiciary for the purposes of this Act.

SECTION 7. There is appropriated out of the general revenues of the State of Hawaii the sum of $          , or so much thereof as may be necessary for fiscal year 2005-2006, for the purpose of enabling the judiciary to contract with a nonjudicial agency to conduct screening for prospective applicants submitting a petition for a temporary restraining order.

SECTION 8. The sum appropriated shall be expended by the judiciary for the purposes of this Act.

SECTION 9. This Act shall take effect upon its approval, provided that sections 5 through 8 shall take effect on July 1, 2005.