THE SENATE

S.B. NO.

1041

THIRTY-SECOND LEGISLATURE, 2023

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to family court.

 

 

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

 

     SECTION 1.  Section 571-2, Hawaii Revised Statutes, is amended as follows:

     1.   By amending the definition of "family violence" to read:

     ""Family violence" means the occurrence of one or more of the following acts by a family or household member, but does not include acts of self-defense:

     (1)  Attempting to cause, threatening to cause, or causing physical harm to another family or household member;

     (2)  Placing a family or household member in fear of physical harm; [or]

     (3)  Causing a family or household member to engage involuntarily in sexual activity by force, threat of force, or duress[.];

     (4)  Causing a child to engage in sexual contact or sexual penetration as defined in section 707-700; or

     (5)  Causing a family or household member extreme psychological abuse as defined in section 586-1."

      2.  By amending the definition of "meaningful contact" to read:

     ""Meaningful contact" means parent and child interactions, activities, and experiences, performed together, which nurture the parent-child attachment and relationship, while contributing to the child's development in a positive and effective manner.  Nothing in this definition shall include contact caused through force, enticement, or coercion."

     SECTION 2.  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 in a way not to offend the Hawaii State Constitution and the Constitution of the United States and by the following standards, considerations, and procedures:

     (1)  Custody [should] shall 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];

     (2)  Custody may be awarded to persons other than the [father or mother] parents 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] a reasonable and safe 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] fact finding 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,] fact finders, shall [make investigations and reports] collect facts that shall be made available to all interested parties and counsel before hearing, and the [reports may] facts shall 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] to supplement the admissible evidence submitted by the parties.  The legislature shall define, in accordance with section 571-46.4, the requirements to be a [court-appointed child custody evaluator,] fact finder and the standards of practice, ethics, policies, and procedures required of court-appointed [child custody evaluators] fact finders 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] fact finder 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 in accordance with section 571-46.4;] shall make its determination based upon all relevant evidence submitted to the trial record by both parties.  The court shall admit to the trial record all relevant evidence pertaining to domestic abuse, family violence, or any violent crime;

     (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] pertains to a just and reasonable determination of what is for the best [physical, mental, moral, and spiritual] physical or psychological safety and well-being of the child whose custody is at issue[;].  To be admissible as evidence, the testimony, opinions, or findings of an expert shall be subject to science-based evidentiary standards;

     (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[,] or appropriate, 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[;].  Any findings, opinions, or recommendations by the guardian ad litem shall not be based or influenced by unscientific theories, beliefs, or speculation;

     (9)  A child's confirmed disclosure of domestic abuse or family violence and the child's preference of parent shall be prima facie evidence establishing domestic abuse;

    (10)  If domestic abuse, intrafamilial sexual abuse, rape, sexual assault, sexual contact of a child, or severe or pervasive unnecessary corporal punishment of a child has been reported at any time, the court shall appoint a guardian ad litem to represent the child at no cost to the protective parent;

    (11)  When a child discloses domestic abuse or family violence, the court shall consider all videotaped forensic interviews conducted in a criminal investigation regarding the alleged crimes to determine a confirmed disclosure of domestic abuse or family violence.  Any identifying information in the video evidence shall be kept confidential in compliance with Hawaii court records rule 9;

    (12)  No finding in the determination of a confirmation of a report of domestic abuse or family violence shall stay a concurrent or future criminal investigation or prosecution;  

    (13)  In every proceeding where a dispute as to the custody of a child is at issue, a finding by the court that family violence or domestic abuse has been reported by a protective parent or a child victim raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed during the pendency of any action of divorce, separation, paternity, annulment, custody, or other family law matter in sole custody, sole legal custody, joint legal custody, or joint physical custody with the perpetrator of family violence, domestic abuse, intrafamilial sexual abuse, or severe or pervasive unnecessary corporal punishment of a child.  A party accused of domestic abuse or family violence shall prove rebuttal with admissible evidence;  

    [(9)] (14)  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 or domestic violence has been [committed] perpetrated by a parent raises [a rebuttable] an irrebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed, at any time, in sole custody, sole legal custody, joint legal custody, or joint physical custody with the perpetrator of family violence[.] or domestic abuse.  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 or domestic violence has been perpetrated by a parent:

          (A)  The court shall consider as [the primary factor] its paramount priority the safety and well-being of the child and [of the] parent who [is] are the [victim] victims of family violence[;] or domestic abuse and the court shall determine custody in the best interests of the child and of the parent who are the victims of domestic abuse or family violence;

          (B)  The court shall consider witness testimony of the perpetrator's history or pattern 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, misses a court matter, or relocates because of [an] a past or current act or acts or threats of family violence or domestic abuse, committed by the other parent, the absence or relocation of the parent identified as the victim of abuse shall not be a factor that weighs against the parent who is the victim of family violence of domestic abuse in determining custody or visitation;

          (D)  In matters where the child is the alleged or reported victim of family violence or domestic abuse, the court shall consider the official videotaped recording of the child's forensic interview conducted by a third party licensed clinical expert or trained law enforcement officer.  The recording shall be considered as witness testimony, which shall be entered into the court record under confidential seal pursuant to Hawaii court records rule 9, and which the court shall consider as prima facie evidence in determining custody in the best interests of the child in favor of the non-offending parent, or if the non-offending parent is not available, the next available candidate who meets the standards of this section and as established by Hawaii common law; and

          (E)  Whenever family violence or domestic abuse has been reported, the court shall enter all admissible evidence into the record and shall issue its finding of fact for its determination of custody, for the court record;

   [(10)] (15)  A court may award limited supervised visitation to a parent who has committed [family violence] physical harm to child only with the consent of the parent who is the victim of family violence or domestic abuse and 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 and psychological well-being of the parent who is a victim of family violence[;] or domestic abuse;

   [(11)] (16)  [In] If a parent who has committed physical harm to a child is eligible for visitation, 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] physical harm to a child to attend and complete, to the satisfaction of the court, a certified program of intervention for perpetrators or other designated counseling as a condition of [the] eligibility for visitation;

          (D)  Order the perpetrator of [family violence] physical harm to a child to abstain from possession or consumption of alcohol or controlled substances [during the] or deadly weapons as a prerequisite for eligibility for visitation [and for twenty-four hours preceding the visitation];

          (E)  Order the perpetrator of [family violence] physical harm to a child 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] physical harm to a child 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;] physical harm to a child;

          (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 of family violence or domestic abuse to be kept confidential;

   [(12)] (17)  The court [may refer but] shall not order [an adult who is] the parent who is a victim of family violence or domestic abuse to attend[,] counseling, 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;] or domestic abuse;

    (18)  The court shall not order any child who is a victim of family violence or domestic abuse to engage in family therapy with the reported perpetrator of the abuse without written consent from the parent who is a victim of family violence or domestic abuse, subsequent to legal counsel;

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

   [(14)] (20)  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[;] and domestic abuse;

   [(15)] (21)  [The] If the perpetrator of physical harm to a child or severe or pervasive unnecessary corporal punishment of a child is not eligible for visitation, then upon consent of the non-offending parent, the court may include, in visitation awarded pursuant to this section, visitation by electronic communication provided that the court shall additionally consider the potential for abuse or misuse of the electronic communication, including the equipment used for the communication, by the person seeking visitation or by persons who may be present during the visitation or have access to the communication or equipment; whether the person seeking visitation has previously violated a temporary restraining order or protective order; and whether adequate provision can be made for the physical safety and psychological well-being of the child and for the safety and psychological well-being of the [custodial] parent[;] who is a victim of family violence or domestic abuse;

   [(16)] (22)  The court may set conditions for visitation by electronic communication under paragraph (15), including visitation supervised by another person or occurring in a protected setting.  Visitation by electronic communication shall not be used to[:

          (A)  Replace] replace or substitute an award of custody or physical visitation except where:

               [(i)](A)  Circumstances exist that make a parent seeking visitation unable to participate in physical visitation, including military deployment; [or

             (ii)  Physical visitation may subject the child to physical or extreme psychological harm; or]

          (B)  The child refuses visitation due to a parent's past or current act of family violence, domestic abuse, or severe or pervasive unnecessary corporal punishment of a child; or

          (C)  Family violence, domestic abuse, intrafamilial sexual abuse, or severe or pervasive unnecessary corporal punishment of a child has been reported;

         [(B)  Justify or support the relocation of a custodial parent;] and

   [(17)] (23)  Notwithstanding any provision to the contrary, no natural parent shall be granted custody of or visitation with a child if the natural parent has been convicted in a court of competent jurisdiction in any state of rape or sexual assault and the child was conceived as a result of that offense; provided that:

          (A)  A denial of custody or visitation under this paragraph shall not affect the obligation of the convicted natural parent to support the child;

          (B)  The court may order the convicted natural parent to pay child support;

          (C)  This paragraph shall not apply if subsequent to the date of conviction, the convicted natural parent and custodial natural parent cohabitate and establish a mutual custodial environment for the child; and

          (D)  A custodial natural parent may petition the court to grant the convicted natural parent custody and visitation denied pursuant to this paragraph, and upon such petition the court may grant custody and visitation to the convicted natural parent where it is in the best interest of the child.

     (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 or extreme psychological harm 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, during, and subsequent to a [marital] marriage 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] found that family violence or domestic abuse of a child has been [committed by a parent;] reported;

     (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 or domestic abuse has been [committed by a parent;] reported;

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

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

   [(14)] (13)  The mental health of each parent;

   [(15)] (14)  The areas and levels of conflict present within the family[; and], unless family violence or domestic abuse has been reported;

   [(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 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.]

    (15)  Each parent's efforts to provide meaningful contact between the child and the other parent, unless family violence or domestic abuse has been reported;

    (16)  If any child has one particular parent with which the child shares a strong parent-child bond but lacks that bond with the other parent for any reason, a court shall not award custody to a child's non-bonded parent;

    (17)  If a child's parent is still breastfeeding a child, a court shall not consider awarding joint physical custody or full physical custody to a non-breastfeeding parent until the child has been fully weaned.  The court and all other parties shall respect a parent's privacy right to determine when to fully wean the child; and

    (18)  A parent's history or pattern of family violence or domestic abuse against the other parent during the pendency of any divorce or custody case, investigation, or protective order matter.

     (c)  In determining what constitutes the best interest of the child under this section, the court shall not consider parental alienation or any of its forms, emanations, or any one or more of its factors as a defense, rebuttal, or basis for any opinion relating to child custody determinations in the best interest of the child.  Courts and third party professionals involved in these determinations shall consider paternal alienation claims to be scientifically discredited, gender biased, and inadmissible in the court of law."

     SECTION 3.  Section 571-46.1, Hawaii Revised Statutes, is amended to read as follows:

     "§571-46.1  Joint custody.  (a)  Upon the application of either parent, joint custody may be awarded in the discretion of the court[.], unless family violence or domestic abuse, or pervasive or severe unnecessary corporal punishment of a child has been reported.  For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court shall, upon the request of either party, direct that [an investigation] fact finder be [conducted] appointed pursuant to the provisions of section 571-46(a)(4).

     (b)  For the purposes of this section, "joint custody" means an order awarding legal custody of the minor child or children to both parents and providing that physical custody shall be shared by the parents, pursuant to a parenting plan developed pursuant to section 571-46.5[, in such a way as to assure the child or children of frequent, continuing, and meaningful contact with both parents; provided, however, that such order may award joint legal custody without awarding joint physical custody].  A court shall not order joint custody of any kind upon its finding that family violence or domestic abuse has been reported.

     (c)  Any order for joint custody may be modified or terminated upon the petition of one or both parents or on the court's own motion if it is shown that the best interests of the child require modification or termination of the order[.], unless a court determines that family violence, domestic abuse, or intrafamilial sexual abuse has been confirmed.

     (d)  Any order for the custody of the minor child or children of a marriage entered by a court in this State or any other state may, subject to the jurisdictional requirements set forth in sections 583A-201 to 583A-204, be modified at any time to an order of joint custody in accordance with this section[.], unless a court finds that family violence or domestic violence or any history of either has been confirmed or is the reason for a parent living in a different jurisdiction."

     SECTION 4.  Section 580-47, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Upon granting a divorce, or thereafter if, in addition to the powers granted in subsections (c) and (d), jurisdiction of those matters is reserved under the decree by agreement of both parties or by order of court after finding that good cause exists, the court [may] shall make [any] further orders [as shall appear] just and equitable (1) compelling the parties or either of them to provide for the support, maintenance, and education of the children of the parties; (2) compelling either party to provide for the support and maintenance of the other party; (3) finally dividing and distributing the estate of the parties, real, personal, or mixed, whether community, joint, or separate; and (4) allocating, as between the parties, the responsibility for the payment of the debts of the parties whether community, joint, or separate, and the attorney's fees, costs, and expenses incurred by each party by reason of the divorce.  In making these further orders, the court shall take into consideration:  the respective merits of the parties, the relative abilities of the parties, the condition in which each party will be left by the divorce, the burdens imposed upon either party for the benefit of the children of the parties, the concealment of or failure to disclose income or an asset, or violation of a restraining order issued under section 580-10(a) or (b), if any, by either party, and all other circumstances of the case.  In establishing the amounts of child support, the court shall use the guidelines established under section 576D-7.  Provision may be made for the support, maintenance, and education of an adult or minor child and for the support, maintenance, and education of an incompetent adult child whether or not the petition is made before or after the child has attained the age of majority.  In those cases where child support payments are to continue due to the adult child's pursuance of education, the agency, three months prior to the adult child's nineteenth birthday, shall send notice by regular mail to the adult child and the custodial parent that prospective child support will be suspended unless proof is provided by the custodial parent or adult child to the child support enforcement agency, prior to the child's nineteenth birthday, that the child is presently enrolled as a full-time student in school or has been accepted into and plans to attend as a full-time student for the next semester a post-high school university, college, or vocational school.  If the custodial parent or adult child fails to do so, prospective child support payments may be automatically suspended by the child support enforcement agency, hearings officer, or court upon the child reaching the age of nineteen years.  In addition, if applicable, the agency, hearings officer, or court may issue an order terminating existing assignments against the responsible parent's income and income assignment orders.

     In addition to any other relevant factors considered, the court, in ordering spousal support and maintenance, shall consider the following factors:

     (1)  Financial resources of the parties;

     (2)  Ability of the party seeking support and maintenance to meet his or her needs independently;

     (3)  Duration of the marriage;

     (4)  Standard of living established during the marriage;

     (5)  Age of the parties;

     (6)  Physical and emotional condition of the parties;

     (7)  Usual occupation of the parties during the marriage;

     (8)  Vocational skills and employability of the party seeking support and maintenance;

     (9)  Needs of the parties;

    (10)  Custodial and child support responsibilities;

    (11)  Ability of the party from whom support and maintenance is sought to meet his or her own needs while meeting the needs of the party seeking support and maintenance;

    (12)  Other factors which measure the financial condition in which the parties will be left as the result of the action under which the determination of maintenance is made; and

    (13)  Probable duration of the need of the party seeking support and maintenance.

     The court may order support and maintenance to a party for an indefinite period or until further order of the court; provided that in the event the court determines that support and maintenance shall be ordered for a specific duration wholly or partly based on competent evidence as to the amount of time which will be required for the party seeking support and maintenance to secure adequate training, education, skills, or other qualifications necessary to qualify for appropriate employment, whether intended to qualify the party for a new occupation, update or expand existing qualification, or otherwise enable or enhance the employability of the party, the court shall order support and maintenance for a period sufficient to allow completion of the training, education, skills, or other activity, and shall allow, in addition, sufficient time for the party to secure appropriate employment."

     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:

_____________________________

 

 

 

 

Report Title:

Family Court; Custody and Visitation; Family Violence; Domestic Abuse

 

Description:

Amends provisions relating to criteria and procedures in court determinations regarding custody and visitation rights, including the court's consideration of family violence and domestic abuse.

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.