HB2061 HD1.DOC

SECTION 1. Hawaii has approximately fifty thousand active-duty military personnel, and sixty-one thousand associated family members. Hawaii has approximately twelve thousand Reserve and National Guard members. The federal government is the second major source of revenue to the state -- second only to tourism. The total spending by the armed services in Hawaii in 2008 was $6.8 billion, which results in direct and indirect effects totaling $10.1 billion to Hawaii’s economy, and accounting for more than ninety-two thousand jobs and $6.4 billion in household earnings. In addition to the above, there were additional expenditures totaling about $450 million by military non-appropriated programs. This includes military exchange stores and defense commissaries, and base morale, welfare and recreation activities, such as golf courses, bowling centers, child development centers, fitness centers, and other similar activities that are operated by funds provided by service members and their families.

According to the 2000 U.S. Census, Hawaii topped all other states with the highest percentage of people ages sixteen to sixty-four in the armed forces at 4.95 per cent. It is imperative, therefore, that the unique nature of military employment be taken into consideration by Hawaii's family court system.

In fiscal year 2008-2009, the Judiciary reported five thousand six hundred and twenty-two marital actions (primarily divorces) filed and two thousand and twenty-one parental proceedings filed. A portion of these include military parents. Also, single military parents and previously divorced families where one parent is a military member are a significant population.

The issues surrounding a military deployment or temporary duty, which separates a parent from his or her children, have a significant effect on the military readiness of the parent and on the well-being of the child.

It has been reported that approximately eight per cent of military service members are single parents and that approximately ten thousand single-parent service members have been deployed overseas for more than six months. These numbers do not include divorced service-member parents who have remarried, where a custodial or non-custodial parent must still deal with deployments and the children.

Nationwide, a number of family court judges use a military service member's absence from home while serving the United States in countries such as Iraq and Afghanistan to take away child-custody and visitation rights. A CBS News analysis of child custody laws found that only five states automatically return children after deployment; five states prohibit deployment from being used in court; fourteen states have weaker protections; and the remaining states provide United States service members with no additional protections. Hawaii has no laws regarding military deployment and custody, yet both a custodial parent and non-custodial parent face difficulties when they deploy -- they can lose total contact with their children.

The magnitude of this problem was noted in 2004 by Lieutenant Colonel Francine I. Swan, Legal Advisor to the Adjutant General, New Hampshire National Guard, in her comments to an inquiry by the American Bar Association’s Working Group on Protecting the Rights of Service Members:

Child custody/visitation: This is the single greatest area of concern -- when the servicemember is the non-custodial parent and visitation is not allowed to any other members of the non‑custodial parent's family (to include siblings, step-parent and grandparents). In some cases this effectively cuts off any and all communication between the child and the non‑custodial parent for the duration of the deployment. Our service members are risking their lives; they should not have to risk their families as well.

As states recognize these concerns, several of these issues are being addressed. Currently, there are eighteen bills active in eleven states which will ensure that the best interests of military children are protected while also providing protections to service members who are parents.

The purpose of this Act is to ensure that protections exist for service-member parents' custody and visitation rights when their military duties require an extended absence from home.

SECTION 2. Chapter 571, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

“Part . military deployment

§571- Purpose. The purpose of this part is to provide a means by which to facilitate a fair, efficient, and swift process to resolve matters regarding custody and visitation for a deploying parent.

§571- Definitions. As used in this part:

"Deploying parent" means a service member who is on deployment or temporary duty, or who has been notified by military leadership of an impending deployment or temporary duty, and is a natural, adoptive, or legal parent or guardian of a child under the age of eighteen, and whose parental rights have not been terminated by a court of competent jurisdiction.

"Deployment" means the temporary transfer of a service member serving in an active-duty status to another location in support of combat or some other military operation.

"Electronic means" includes communication via telephone, video teleconference, or other available electronic communication system.

"Mobilization" or "mobilized" means the call of a member of the national guard or reserve component of the United States armed forces to extended active-duty status. Mobilization does not include national guard or reserve annual training, inactive duty days, or drill weekends.

"Party" means the deploying parent or non-deploying parent.

"Service member" means an active-duty member of the United States armed forces, a member of a reserve component of the United States armed forces, or a member of the national guard, who has been mobilized.

"Temporary duty" means the transfer of a service member from the service member's military base, or the service member's home, to a different location, usually another military base, for a limited period of time to accomplish training or to assist in the performance of a non-combat mission.

§571- Duty to cooperate and disclose information. (a) Because military necessity may preclude court adjudication before deployment, the parties shall cooperate with each other in an effort to reach a mutually agreeable resolution of custody, visitation, and child support. Each party shall provide information to one another in an effort to facilitate agreement on these issues.

(b) Within fourteen days of receiving notification of deployment or temporary duty from a deploying parent's military leadership, the deploying parent shall provide written notice of the same, to the other parent. If less than fourteen days’ notice is received by the deploying parent, then notice must be given immediately, upon receipt of notice, to the other parent.

§571- No existing custody or visitation order. (a) If there is no existing order establishing the terms of custody or visitation for a deploying parent, upon motion by either parent, the court may expedite a temporary hearing to establish temporary custody or visitation to ensure that the deploying parent has access to the child, to ensure disclosure of information, to grant other rights and duties set forth herein, and to provide other appropriate relief.

(b) Any initial pleading filed to establish custody or visitation for a child of a deploying parent shall state in the text of the pleading the specific facts related to the deployment or temporary duty and develop a parenting plan pursuant to section 571-46.5.

§571- Permanent custody or visitation order. (a) If a deploying parent is required to be separated from a child, the court shall not enter a permanent custody order until ninety days after the deployment or temporary duty ends and the deploying parent returns to the deploying parent's permanent residence, unless such modification is agreed to by the deploying parent.

(b) A service member's deployment or temporary duty, or the potential for future deployment or temporary duty, and the associated ramifications, shall not be the sole factor supporting a change in circumstance or grounds sufficient to result in a permanent modification of an existing custody or visitation order, if a motion is filed to transfer custody away from the service member.

(c) Nothing in this section shall preclude the court from hearing a motion for a permanent change of custody or visitation prior to, or upon the return of, the deploying parent.

§571- Temporary custody or visitation order. (a) An existing order establishing the terms of custody or visitation, in place at the time a service member parent is deployed or on temporary duty, may be temporarily modified to make reasonable accommodations for the parties and child because of the deployment or temporary duty.

(b) A temporary modification order issued pursuant to this section, based on the best interests of the child, shall provide for:

(1) The deploying parent's reasonable visitation during any leave periods granted to the deploying parent; provided that the deploying parent shall provide timely information regarding his or her leave schedule to the non-deploying parent, subject to actual leave dates' changing with little notice due to military necessity; and

(2) The non-deploying parent's facilitating communication opportunities between the child and the deploying parent, including communication via electronic means and letters, during the deploying parent's absence.

(c) Any court order modifying previously ordered custody or visitation due to deployment or temporary duty shall specify that the deployment or temporary duty is the basis for the order and shall be entered by the court as a temporary order. Any such custody or visitation order shall further require the non-deploying parent to provide the court and the deploying parent with thirty days’ advance written notice of any change of address or telephone number.

(d) Upon motion of a deploying parent, and upon reasonable advance notice and for good cause shown, the court may hold an expedited hearing in any custody or visitation matters instituted under this part, pursuant to section 571-46 when the military duties of the deploying parent have a material effect on his or her ability, or anticipated ability, to appear in person at a regularly scheduled hearing.

§571- Delegation of parental visitation rights. Upon motion of the deploying parent, the court may delegate the parent's visitation rights, or a portion thereof, to a family member who has had continual meaningful contact with the child, for the duration of the parent's absence, if delegating visitation rights is in the child’s best interest. Such delegated visitation does not create an entitlement or standing to assert separate rights to visitation for any person other than a parent and shall terminate by operation of law upon the end of the deploying parent's absence, as set forth in this part.

§571- Termination of temporary custody or visitation orders. (a) All temporary custody and visitation modification orders, pursuant to this part, shall include a specific transition plan and schedule, over the shortest reasonable time period after the deploying parent returns, to facilitate a reinstatement of the original terms of the custody or visitation order in place prior to the service member's notice of deployment or temporary duty, taking into consideration the child’s best interests. All temporary custody and visitation modification orders, pursuant to this part, shall expire upon the completion of this transition, and the original terms of the custody or visitation order in place prior to the service member's notice of deployment or temporary duty shall be reinstated.

(b) Nothing in this section shall limit the discretion of the court to conduct an expedited hearing regarding custody or visitation upon the return of the deploying parent and the filing of a motion alleging an immediate danger of irreparable harm to the child if the original terms of the custody or visitation order in place prior to the service member's notice of deployment or temporary duty are reinstated.

(c) The non-deploying parent shall bear the burden of proof showing that this transition plan and reinstatement of the original terms of the custody or visitation order in place prior to the service member's notice of deployment or temporary duty are no longer in the child's best interests.

§571- Testimony and evidence. Upon motion of a deploying parent, provided reasonable advance notice is given and for good cause shown, the court shall allow the deploying parent to present testimony and evidence by affidavit or electronic means with respect to custody and visitation matters instituted under this part when the military duties of that parent have a material effect on his or her ability to appear in person at a regularly scheduled hearing.

§571- Appointment of a guardian ad litem. In any action brought under this section, whenever the court declines to grant or extend a stay of proceedings under the Servicemembers Civil Relief Act, 50 United States Code Appendix Section 521-522, and decides to proceed in the absence of the deploying parent, the court shall appoint, at the request of the deploying parent, or on its own motion, a guardian ad litem to represent the minor child’s interests.

§571- Service of process. Service of process on a non-deploying parent whose whereabouts are unknown may be accomplished by certified mail, return receipt requested, to the non-deploying parent’s last known address based on an affidavit of the deploying parent.

§571- Removal of the child from the state. Once an order for custody has been entered in Hawaii, any absence of a child from this state, during the absence of a deploying parent, shall be denominated a temporary absence for the purposes of the application of chapter 583A. For the duration of the deploying parent's absence, Hawaii shall retain exclusive, continuing jurisdiction pursuant to section 583A-202, and the deploying parent's deployment or temporary duty may not be used as a basis to assert inconvenience of the forum under section 583A-207.

§571- Attorney's fees. In making determinations pursuant to this section, the court may award attorney’s fees and costs based on the court’s consideration of:

(1) The failure of either party to reasonably accommodate the other party in custody or visitation matters related to a deploying parent’s military duties;

(2) An excessive delay caused by either party unreasonably addressing or not complying with custody or visitation matters related to a deploying parent;

(3) The failure of either party to timely provide military orders, leave dates, income or financial information, housing or educational information, or information about the physical location of the child, to the other party; or

(4) Other factors as the court may consider appropriate and as may be required by law.

§571- Modification or waiver of rights. Nothing in this section shall be considered as a modification or waiver of any rights or protections contained in the Servicemembers Civil Relief Act or any other federal law."

SECTION 3. Section 571-46, Hawaii Revised Statutes, is amended to read as follows:

"§571-46 Criteria and procedure in awarding custody and visitation; best interest of the child. (a) In 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 [~~also~~] 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; provided that the custody award shall be made in accordance with part ;

(2) Custody may be awarded to persons other than [~~the~~ ~~father or mother~~] a parent 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, hereinafter referred to as child custody evaluators, shall make investigations and reports that 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; and provided further that the court shall define the requirements to be a court-appointed child custody evaluator, the standards of practice, ethics, policies, and procedures required of court-appointed child custody evaluators in the performance of their duties for all courts, and the powers of the courts over child custody evaluators to effectuate the best interests of a child in a contested custody dispute pursuant to this section. Where there is no child custody evaluator available that meets the requirements and standards, or any child custody evaluator to serve indigent parties, the court may appoint a person otherwise willing and available[[];[]]

(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; provided that the modification shall be made in accordance with part ;

(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 shall 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 has 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 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.

(b) In determining what constitutes the best interest of the child under this section, the court shall consider[,] but not be limited to[,] the following:

(1) Any history of sexual or physical abuse of a child by a parent;

(2) Any history of neglect or emotional abuse of a child by a parent;

(3) The overall quality of the parent-child relationship;

(4) The history of caregiving or parenting by each parent prior and subsequent to a marital or other type of separation;

(5) Each parent's cooperation in developing and implementing a plan to meet the child's ongoing needs, interests, and schedule; provided that this factor shall not be considered in any case where the court has determined that family violence has been committed by a parent;

(6) The physical health needs of the child;

(7) The emotional needs of the child;

(8) The safety needs of the child;

(9) The educational needs of the child;

(10) The child's need for relationships with siblings;

(11) Each parent's actions demonstrating that they allow the child to maintain family connections through family events and activities; provided that this factor shall not be considered in any case where the court has determined that family violence has been committed by a parent;

(12) Each parent's actions demonstrating that they separate the child's needs from the parent's needs;

(13) Any evidence of past or current drug or alcohol abuse by a parent;

(14) The mental health of each parent;

(15) The areas and levels of conflict present within the family; and

(16) A parent's prior wilful misuse of the protection from abuse process under chapter 586 to gain a tactical advantage in any proceeding involving the custody determination of a minor. [~~Such~~] The wilful misuse may be considered only if it is established by clear and convincing evidence, and if it is further found by clear and convincing evidence that in the particular family circumstance the wilful misuse tends to show that, in the future, the parent who engaged in the wilful misuse will not be able to cooperate successfully with the other parent in their shared responsibilities for the child. The court shall articulate findings of fact whenever relying upon this factor as part of its determination of the best interests of the child. For the purposes of this section, when taken alone, the voluntary dismissal of a petition for protection from abuse shall not be treated as prima facie evidence that a wilful misuse of the protection from abuse process has occurred."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

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

SECTION 6. This Act shall take effect on July 1, 2050.

HOUSE OF REPRESENTATIVES	H.B. NO.	2061
TWENTY-FIFTH LEGISLATURE, 2010		H.D. 1
STATE OF HAWAII