HB2061 SD2.DOC

SECTION 1. Hawaii has approximately fifty thousand active-duty military personnel and sixty-one thousand associated family members. Additionally, Hawaii has approximately twelve thousand Reserve and National Guard members. According to the 2000 United States Census, at 4.95 per cent, Hawaii topped all other states with the highest percentage of people ages sixteen to sixty-four in the armed forces.

In fiscal year 2008-2009, the judiciary reported 5,622 marital actions (primarily divorces) filed and 2,021 parental proceedings filed. Many of these cases involved military parents. Also, single military parents and previously divorced families where one parent is a military member constitute a significant part of Hawaii's population. 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. The issues surrounding military duty which separate parents from children have a significant effect on the military readiness of the parents and the well-being of the children.

The purpose of this Act is to require special family court procedures in child custody disputes involving service members who are deployed.

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

"§571‑ Military dependent; child custody procedures. (a) Where there is an existing judgment, order, or decree addressing what shall occur with respect to custody and visitation of a minor child in the event of the deployment of either or both parents, the court shall enforce the provisions of that judgment, order, or decree, upon application by either parent, unless the court finds that to do so would not be in the best interests of the child.

(b) Upon a motion by either parent seeking to establish or modify custody or visitation orders which alleges that a parent has deployed or will likely deploy within the next sixty days, the court shall set the motion for an expedited hearing. The hearing shall be set within fourteen days of the filing of the motion and, whenever possible, prior to the parent's deployment.

Any motion under this subsection shall specify the factual basis upon which the movant claims that a parent has deployed or is likely to deploy. The motion shall specify when and how the deploying or deployed parent notified the nondeploying parent of the deployment. The court may consider the deploying parent's timeliness in disclosing an impending deployment to the other parent in making any orders under this section, unless a delay or failure to disclose was necessitated by valid military or operational security concerns.

Following the hearing, the court shall enter a temporary order valid for a period no longer than thirty days after the parent's return from deployment.

(c) If the deploying parent is the custodial parent and, unless the parties have agreed to other custodial arrangements or the court finds the nondeploying parent to be unfit, the court shall award temporary custody and temporary child support to the nondeploying parent.

(d) Any temporary order shall provide for visitation to the deployed parent, affording priority to the deployed parent's pre-deployment, mid-tour, post-deployment, or other leave; provided that the court may require visitation to occur in a location that does not interfere with the child's schooling or other specified activities. The temporary order shall also provide for visitation by way of electronic means and surface mail between the deployed parent and child. The temporary order may also provide for visitation between the child and the child's siblings who may be separated as a result of the temporary order.

Upon request of the deployed parent, the court may order visitation that the deployed parent might otherwise exercise in the absence of deployment to be exercised by the deployed parent's delegate.

The temporary order may authorize the temporary relocation of the child outside of the State.

(e) Notwithstanding any other law to the contrary, having made a temporary order under this section, the court shall retain continuing exclusive jurisdiction until a post-deployment review hearing is held.

(f) Upon entering a temporary custody order, the court shall set the matter for a review hearing within thirty days after the deploying parent's anticipated return from deployment. The date of the review hearing may be advanced if the deployed parent returns from deployment sooner than anticipated or continued if the deployed parent remains deployed longer than anticipated.

(g) Following the review hearing, the court may set the matter for further evidentiary hearing, if appropriate, and make any further orders necessary in the best interests of the child.

(h) In addition to any other method prescribed by law, service of process on a deploying or deployed parent may be made by first class mail addressed to the individual through the Army Post Office or Fleet Post Office address, or addressed to the service member at the service member's unit or military installation. The court may allow service by any other means if the court is satisfied that the deploying or deployed parent received or will receive actual notice, including by electronic means.

Any motion seeking an expedited hearing shall be served upon the other party not less than forty-eight hours prior to the hearing.

(i) The court may permit alternative methods of participation and testimony by electronic means in any hearing conducted under this section, for either parent for whom physical attendance is impractical or would impose undue hardship. A parent's affidavit or declaration under penalty of perjury shall be admissible, and a facsimile, electronic mail, or scanned copy of the affidavit, declaration, or any other relevant document may be admitted in the same manner as an original document unless there is a genuine issue as to its authenticity.

(j) This section shall not create or confer a separate right of action. Any person seeking a court order under this section must initiate or have a pending proceeding in the court or meet the requirements for filing a proceeding under chapter 580, chapter 583A, chapter 584, or any other statute authorizing an action in which the custody and visitation of a child may be established or modified. This section does not confer child custody jurisdiction or child support jurisdiction upon the court where it would not otherwise exist under chapter 583A or chapter 576B. This section is not intended to supersede, modify, or constitute a waiver of any rights or protections provided by the Servicemembers Civil Relief Act, P.L. 108-189, and shall be construed in conformity therewith.

(k) As used in this section:

"Deployed parent" means a parent who is a service member and is deployed.

"Deploying parent" means a parent who is a service member and is likely to deploy within the next sixty days.

"Deployment" means the absence of a service member from his or her usual place of residence or duty station pursuant to military orders, whether:

(1) For a period of at least sixty days;

(2) In support of a specified military operation; and

(3) Under conditions that preclude a child from accompanying the service member,

and from which the service member is expected to return to his or her usual place of residence or the duty station from which deployed.

"Electronic means" means communication by telephone, radiotelephone, video teleconference, webcam, facsimile, electronic mail, or other available electronic communication systems.

"Parent" means a person who is the natural, legal, adoptive parent, or legal guardian of a child under the age of eighteen or a person who has commenced legal proceedings to establish such relationship and whose parental rights have not been terminated.

"Return from deployment" means the date upon which the deployed parent:

(1) Returns to the prior place of residence or duty station; or

(2) Arrives at a new duty station for an indefinite period or a period that will exceed ninety days, not including periods of leave during which the deployed parent may return to the location from which the parent was deployed, nor to periods of temporary duty during deployment.

"Service member" means an active duty member of the Armed Forces of the United States Army, Navy, Marine Corps, Air Force, or Coast Guard, including members of the reserve components or national guard when serving on active duty under Title 10, United States Code and, in the case of a member of the national guard, includes service under a call to active service authorized by the President of the United States or the United States Secretary of Defense for a period of more than thirty consecutive days under Title 32 of the United States Code section 502(f). The term "service member" does not include members of the reserve components in inactive duty, active duty other than under Title 10 or Title 32 of the United States Code, or members of the national guard serving on active service pursuant to section 121-30."

SECTION 3. Section 571-46, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(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 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 section 571‑ , if applicable;

(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, 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 custody award shall be made in accordance with section 571‑ , if applicable;

(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."

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 September 14, 2047.

HOUSE OF REPRESENTATIVES	H.B. NO.	2061
TWENTY-FIFTH LEGISLATURE, 2010		H.D. 1
STATE OF HAWAII		S.D. 2