Bill Text: HI HB107 | 2019 | Regular Session | Introduced
Bill Title: Relating To Child Custody.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2019-01-22 - Referred to HSH, JUD, referral sheet 2 [HB107 Detail]
Download: Hawaii-2019-HB107-Introduced.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
107 |
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THIRTIETH LEGISLATURE, 2019 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO CHILD CUSTODY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1.
Section 302A-481, Hawaii Revised Statutes, is amended by amending the
definition of "caregiver" to read as follows:
""Caregiver" means any person who is at least eighteen years of age and:
(1) Related by blood,
marriage, or adoption to the minor, including a person who is entitled to an
award of custody pursuant to section [571-46(a)(2)] 571-46(a)(5) but
is not the legal custodian or guardian of the minor; or
(2) Has resided with the minor for a continuous immediate preceding period of six months or more."
SECTION 2. 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] There
shall be a presumption, rebuttable by a preponderance of the evidence, that
joint custody and equally shared parenting time is in the best interests of the
child. If a deviation from equal parenting
time is warranted, the court shall construct a parenting time schedule that
maximizes the time each parent or de facto custodian has with the child,
consistent with ensuring the child's welfare;
(2) If
the parents live in the same county, custody and visitation shall be shared
equally, unless the court finds that one or more parents is unable to provide
for the best interests of the child or the court considers the issue of family
violence pursuant to paragraph (13);
(3) If the parents
do not live in the same county, but would otherwise qualify for shared custody
and visitation pursuant to paragraph (2), custody and visitation may be
awarded to either parent or to both parents according to the best interests of
the child, and the court [also may] shall consider the
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;] the child with each parent;
(4) If the court is unable to determine custody pursuant to paragraphs (2) and (3), custody may be awarded to either parent or to both parents according to the best interests of the child, and the court shall consider the frequent, continuing, and meaningful contact of the child with each parent;
[(2)] (5) Custody may be awarded to persons other than
the father or mother whenever the award serves the best interests 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)] (6) 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;
(7) The
motivations of the adults involved shall be considered when determining the
best interests of the child;
[(4)] (8) 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, in accordance
with section 571-46.4, 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 in accordance with section 571-46.4;
[(5)] (9) The court may hear the
[(6)] (10) 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;
[(7)] (11) 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)] (12) 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)] (13) 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 effect of incidents of family
violence on the relationship between the child and each parent;
[(B)] (C) 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)] (D) 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)] (14) 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)] (15) 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)] (16) 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)] (17) If a court allows a family or household
member to supervise visitation, the court shall establish conditions to be
followed during visitation;
[(14)] (18) 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;
[(15)] (19) 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 of the custodial
parent;
[(16)] (20) The court may set conditions for
visitation by electronic communication under paragraph [(15),] (19),
including visitation supervised by another person or occurring in a protected
setting. Visitation by electronic
communication shall not be used to:
(A) Replace or substitute an award of custody or physical visitation except where:
(i) 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) Justify or support the relocation of a custodial parent; and
[(17)] (21)
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."
SECTION 3. Section 571-46.1, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Upon the application
of either parent, joint custody may be awarded in the discretion of the
court. 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 be conducted pursuant to the provisions of section [571-46(a)(4).]
571-46(a)(8)."
SECTION 4.
Section 577-28, Hawaii Revised Statutes, is amended by amending
subsection (g) to read as follows:
"(g)
As used in this section, "caregiver" means any person who is
at least eighteen years of age and:
(1) Is
related by blood, marriage, or adoption to the minor, including a person who is
entitled to an award of custody pursuant to section [571-46(a)(2)] 571-46(a)(5)
but who is not the legal custodian or guardian of the minor; or
(2) Has
resided with the minor continuously during the immediately preceding period of
six months or more."
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.
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INTRODUCED BY: |
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Report Title:
Family Court; Child Custody; Parental Parity
Description:
Clarifies the factors under which the family court awards custody and visitation of a minor child to ensure parental parity.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
