HB2286

SECTION 1. The legislature finds that there is growing national and international recognition of child marriage as a human rights violation and a severe impediment to social and economic development. This recognition has led other jurisdictions of the United States, and other nations, to consider legislation that would prohibit the practice of child marriage.

The legislature is cognizant that the United Nations Children's Fund, or UNICEF, describes child marriage as a formal marriage or informal union between a child under the age of eighteen and an adult or another child. Further, United Nations Sustainable Development Goal 5, relating to gender equality, sets the year 2030 as the target for ending child marriage. The sustainable development goals were unanimously adopted in 2015 by all one hundred ninety-three member states of the United Nations, including the United States. A 2021 United Nations report on the sustainable development goals forecasts that over the next ten years, as many as ten million more girls will be at risk of child marriage as a result of the coronavirus disease 2019 pandemic; this figure is in addition to the one hundred million girls who were earlier estimated to become child brides.

Child marriage is especially concerning because children have not reached the threshold of adulthood, a status that grants certain rights and responsibilities, including in some states the right to divorce. Additionally, a child entering into a marriage may have been pressured or coerced into marrying, especially if the child is pregnant. A marriage may also be the result of the illegal practice of sex trafficking. According to an analysis conducted by "Frontline", an investigative news program of the Public Broadcasting Service, between 2000 and 2015, more than two hundred seven thousand individuals under the age of eighteen were married in the United States. While most children were sixteen or seventeen years of age at the time of marriage, some were as young as twelve years old. Girls are disproportionately impacted, with the vast majority of child marriages involving a minor female and an adult male.

Hawaii's laws regularly define "children" as persons who are less than eighteen years of age, and often refer to children as "minors." Nonetheless, state law currently allows children as young as sixteen years of age to marry. State law further authorizes the family court to approve a marriage of a child who is fifteen years of age. Comparatively, sexual assault laws criminalize sexual conduct with a fifteen-year-old, though an exception is made if the fifteen-year-old is legally married to the sexual partner or if the sexual partner is less than five years older than the minor. Based on data from the department of health, at least eight hundred children were married in Hawaii since 2000, with eighty per cent of these marriages being girls marrying adult men.

The legislature further finds that between 2018 and 2021, six states--Delaware, New Jersey, Pennsylvania, Minnesota, Rhode Island, and New York--have enacted laws setting the minimum age for marriage at eighteen, without exception. Additionally, the territories of American Samoa and the United States Virgin Islands also prohibit child marriages. Similar legislation has been introduced in a number of other states and at the congressional level.

The purpose of this Act is to end child marriage in Hawaii by requiring that both parties be eighteen years of age or older.

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

1. By amending the definition of "guardianship of a minor" to read:

""Guardianship of a minor" means the duty and authority to make important decisions in matters having a permanent effect on the life and development of the minor and to be concerned about the minor's general welfare. It includes[,] but shall not [~~necessarily~~] be limited, in either number or kind, to:

(1) The authority to consent [~~to marriage,~~] to enlistment in the armed forces of the United States[,] or to major medical, psychiatric, and surgical treatment; to represent the minor in legal actions; or to make other decisions concerning the minor of substantial legal significance;

(2) The authority and duty of reasonable visitation, except to the extent that the right of visitation has been limited by court order;

(3) The rights and responsibilities of legal custody when guardianship is exercised by the natural or adoptive parent, except where legal custody has been vested in another individual, agency, or institution; and

(4) The authority to consent to the adoption of the minor and to make any other decision concerning the minor that the minor's parents could make, when the rights of the minor's parents, or only living parent, have been judicially terminated as provided for in the statutes governing termination of parental rights to facilitate legal adoption, or when both of the minor's legal parents are deceased."

2. By amending the definition of "residual parental rights and responsibilities" to read:

""Residual parental rights and responsibilities" means those rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship of the person, including[,] but not [~~necessarily~~] limited to[,] the right to reasonable visitation, consent to adoption [~~or marriage~~], and the responsibility for support."

SECTION 3. Section 571-11, Hawaii Revised Statutes, is amended to read as follows:

"§571-11 Jurisdiction; children. Except as otherwise provided in this chapter, the court shall have exclusive original jurisdiction in proceedings:

(1) Concerning any person who is alleged to have committed an act prior to achieving eighteen years of age that would constitute a violation or attempted violation of any federal, state, or local law or county ordinance. Regardless of where the violation occurred, jurisdiction may be taken by the court of the circuit where the person resides, is living, or is found, or in which the offense is alleged to have occurred;

(2) Concerning any child living or found within the circuit:

(A) Who is neglected as to or deprived of educational services because of the failure of any person or agency to exercise that degree of care for which it is legally responsible;

(B) Who is beyond the control of the child's parent or other custodian or whose behavior is injurious to the child's own or others' welfare;

(C) Who is neither attending school nor receiving educational services required by law whether through the child's own misbehavior or nonattendance or otherwise; or

(D) Who is in violation of curfew;

(3) To determine the custody of any child or appoint a guardian of any child;

(4) For the adoption of a person under chapter 578;

(5) For the termination of parental rights under sections 571-61 through 571-63;

(6) For judicial consent to the [~~marriage,~~] employment[,] or enlistment of a child[,] when consent is required by law;

(7) For the treatment or commitment of a mentally defective or mentally ill child, or a child with an intellectual disability;

(8) Under the Interstate Compact on Juveniles under chapter 582 or the Interstate Compact for Juveniles under chapter 582D;

(9) For the protection of any child under chapter 587A;

(10) For a change of name as provided in section 574‑5(a)(2)(C); and

(11) Concerning custody or guardianship of an immigrant child pursuant to a motion for special immigrant juvenile factual findings requesting a determination that the child was abused, neglected, or abandoned before the age of eighteen years for purposes of section 101(a)(27)(J) of the federal Immigration and Nationality Act. For the purposes of this paragraph, "child" means an unmarried individual under the age of twenty-one years."

SECTION 4. Section 572-1, Hawaii Revised Statutes, is amended to read as follows:

"§572-1 Requisites of valid marriage contract. In order to make valid the marriage contract, which shall be permitted between two individuals without regard to gender, it shall be necessary that:

(1) The respective parties do not stand in relation to each other of ancestor and descendant of any degree whatsoever, two siblings of the half as well as to the whole blood, uncle and niece, uncle and nephew, aunt and nephew, or aunt and niece, whether the relationship is the result of the issue of parents married or not married to each other or parents who are partners in a civil union or not partners in a civil union;

(2) Each of the parties at the time of contracting the marriage is at least [~~sixteen~~] eighteen years of age; [provided that with the written approval of the family court of the circuit within which the minor resides, it shall be lawful for a person under the age of sixteen years, but in no event under the age of fifteen years, to marry, subject to section 572-2;]

(3) Neither party has at the time any lawful wife, husband, or civil union partner living, except as provided in section 572-1.7;

(4) Consent of neither party to the marriage has been obtained by force, duress, or fraud;

(5) Neither of the parties is a person afflicted with any loathsome disease concealed from, and unknown to, the other party;

(6) The parties to be married in the State shall have duly obtained a license for that purpose from the agent appointed to grant marriage licenses; and

(7) The marriage ceremony be performed in the State by a person or society with a valid license to solemnize marriages and the parties to be married and the person performing the marriage ceremony be all physically present at the same place and time for the marriage ceremony."

SECTION 5. Section 572-10, Hawaii Revised Statutes, is amended to read as follows:

"§572-10 [~~Applicant apparently under age.~~ If] Age of applicant. For any applicant for a license to marry [~~appears to any agent to be under the age of eighteen years~~], the agent shall, before granting a license to marry, require the production of a certificate of birth or other satisfactory proof showing the age of the applicant."

SECTION 6. Section 577-25, Hawaii Revised Statutes, is amended to read as follows:

"[[]§577-25[]] Emancipation of certain minors. (a) Any law to the contrary notwithstanding, a minor who has [~~been married pursuant to chapter 572~~] received a complete or partial emancipation order from a court pursuant to this section shall be deemed to be emancipated and shall be regarded as though he or she were of legal age and shall have all the rights, duties, privileges, and responsibilities provided by the civil law to a person who has reached the age of majority under civil law; provided that:

(1) Nothing in this section shall be deemed to confer upon [~~such~~] the emancipated person the right to vote in any federal, state, or county election or the right to purchase, possess, or sell alcoholic beverages; [~~and~~]

(2) Nothing in this section shall change the status of [~~such~~] emancipated persons as minors in connection with any criminal law, nor affect the exclusive original jurisdiction of the family court over [~~such~~] these persons under section 571-11(1)[.]; and

(3) Nothing in this section shall be deemed to confer upon a partially emancipated minor any rights and responsibilities aside from those specified in the order of the court.

(b) For purposes of this section[,]:

"Guardian" has the same meaning as in section 327‑2.

"Mature minor" means a person over sixteen years of age but under eighteen years of age who has demonstrated the ability and capacity to manage the minor's own affairs and to live wholly or partially independently of the minor's parents, guardians, or custodians.

[~~"minor"~~] "Minor" means a person under the age of majority[.] but not less than sixteen years old.

"Parent" has the same meaning as in section 327-2.

(c) Upon the filing of a petition by the minor, and after any hearing or notice to all persons as set forth in subsections (f), (g), and (h), the circuit court in the county where the minor resides, is found, owns property, or in which a court action affecting the interests of the minor is pending, may enter a finding that the minor is a mature minor and order complete or partial emancipation of the minor.

(d) The court shall retain continuing jurisdiction over the proceedings until the emancipated minor reaches the age of eighteen and may modify or terminate its previous emancipation orders; provided that any subsequent modification or termination of a previous order shall be effective only prospectively and shall not affect any rights, duties, obligations, or causes of action existing prior to the modification or termination of any order.

(e) The petition for emancipation shall be verified and shall include:

(1) The age of the minor;

(2) Confirmation that the minor is a resident of, owns real estate in, or is a party in any case pending in the State;

(3) A description of the cause for which the minor seeks to obtain partial or complete emancipation;

(4) The names of the minor's parents and their address or addresses, if living;

(5) The names and addresses of any guardians or custodians appointed for the minor;

(6) Documentation supporting a finding that the minor is a mature minor who has demonstrated the ability and capacity to manage the minor's own affairs; and

(7) Documentation confirming that the minor has lived wholly or partially independently of the minor's parents, guardian, or custodian.

(f) All persons named in the petition shall be given written notice within twenty-one days after the filing of the petition for emancipation. Those persons shall have a right to be present at any hearing and to be represented by counsel. All notices shall be served on the persons named in the petition either by personal service or by certified mail.

(g) Before proceeding to a hearing on the petition for emancipation of a mature minor, the court shall advise all persons present of the nature of the proceedings and of their rights and responsibilities if an order of emancipation should be entered.

(h) If, after the hearing, the court determines that the minor is a mature minor who is of sound mind and has the capacity and maturity to manage the minor's own affairs, including financial affairs, and that the best interests of the minor and the minor's family will be promoted by declaring the minor an emancipated minor, the court shall enter a finding that the minor is an emancipated minor within the meaning of this section, or that the mature minor is partially emancipated with any limitations the court deems appropriate.

(i) No order of complete or partial emancipation shall be entered under this section if there is any objection by the minor. An order of complete or partial emancipation may be entered under this section if there is an objection by the minor's parents or guardian only if the court finds, after a hearing and in writing, that emancipation would be in the best interests of the minor.

(j) Any judgment or order allowing or denying a complete or partial emancipation is a final order for purposes of appeal."

SECTION 7. Section 580-22, Hawaii Revised Statutes, is amended to read as follows:

"§580-22 Nonage. An action to annul a marriage on the ground that one of the parties was under legal age, may be brought by the parent or guardian entitled to the custody of the minor, or by any person admitted by the court to prosecute as the friend of the minor. In no case shall the marriage be annulled on the application of a party who was of legal age at the time it was contracted[~~; nor when it appears that the parties, after they attained the legal age, had for any time freely cohabited as man and wife~~]."

SECTION 8. Section 572-2, Hawaii Revised Statutes, is repealed.

["~~§572-2 Consent of parent or guardian.~~ Whenever any person who is under the age of eighteen is to be married, the written consent of his or her parents, or guardian or other person in whose care and custody he or she may be, shall accompany the application for a license to marry. No license shall be issued to any minor who is under the jurisdiction of the family court without the written consent of a judge of such court."]

SECTION 9. Section 572-9, Hawaii Revised Statutes, is repealed.

["~~§572-9 Persons under age.~~ Whenever any person who is under the age of eighteen, whose parents are dead, or who is a ward of a family court, applies for a license to marry, he or she shall set forth in the statement accompanying the application, the name of his or her guardian or of any other person in whose care and custody he or she may be."]

SECTION 10. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 12. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2286
THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII