Bill Text: HI HB1314 | 2011 | Regular Session | Introduced

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Bill Title: Family Court; Custody

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2011-01-28 - (H) Referred to HUS, JUD, referral sheet 3 [HB1314 Detail]

Download: Hawaii-2011-HB1314-Introduced.html

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HOUSE OF REPRESENTATIVES	H.B. NO.	1314
TWENTY-SIXTH LEGISLATURE, 2011
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.  The legislature finds that the current system for awarding custody in divorce and other similar actions may encourage parents to engage in unnecessarily adversarial, prolonged litigation that wastes financial assets and diminishes goodwill necessary for collaborative parenting.  Such litigation develops entrenched, highly conflicted positions that exacerbate the children's long-term risks and is not in the best interests of the child.

     Joint custody and making collaborative decisions and agreements on how to best parent children during the critical transition to divorce is important for the well-being and healthy development of children.  Building on shared parenting provides for the child's psychological stability and well-being at the outset of a contested custody action.  Continuing an environment of joint custody of the children keeps both parents involved in their children's lives to the maximum extent possible.

     The purpose of this Act is to have a joint custody procedural option for certain divorcing parents.  In specific controlled cases where there is a pre-existing shared custody relationship, no finding of family violence, and the parents have filed a parenting plan with the court, creating a rebuttable presumption in favor of joint custody or "shared parenting" is in the child's best interests.

     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 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;

     (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, prior to the action, the parents or parties exercised the equivalent of joint custody over the child, had meaningful contact with the child, and there is no finding of family violence, then if either or both parents or parties request or apply for joint custody of the child, there shall be a rebuttable presumption that joint custody of the child should continue pursuant to section 571-46.1, unless the court makes detailed findings and conclusions that joint custody of the child is not in their best interests;

    [(3)] (4)  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)] (5)  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)] (6)  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)] (7)  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)] (8)  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)] (9)  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)] (10)  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)] (11)  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)] (12)  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)] (13)  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)] (14)  If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation; and

   [(14)] (15)  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 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, shall direct that an investigation be conducted pursuant to the provisions of section [571-46(a)(4).] 571-46(a)(5).  If an investigation is ordered, a joint custody award pursuant to section 571-46(a)(3) shall not be delayed for investigation purposes, and the investigation shall be conducted in parallel with existing custody orders."

     SECTION 4.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Family Court; Custody

 

Description:

Creates a presumption in favor of joint custody where parents have an existing joint custody equivalent relationship with the child and there is no finding of family violence.

 

 

 

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