Hawaii-2012-HB2426-Amended

SECTION 1. 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) There shall be a rebuttable presumption that joint custody should be awarded if each of the following elements exist:

(A) The parents or parties, at the time the action was initiated, exercised joint custody over the child whose custody is contested;

(B) Both parents or parties have or had meaningful contact with the child prior to the action;

(D) There is no determination by the court pursuant to paragraph (11) that family violence has been committed by either parent or party;

(E) The parents or parties requesting joint custody have filed with the court a parenting plan pursuant to section 571-46.5 that is sufficiently detailed to support an award of joint custody; and

(F) No court finding or conclusion exists that shows joint custody is not in the best interests of the child or that the parents or parties requesting joint custody are unable to act in the best interests of the child;

[~~(2)~~] (3) 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)~~] (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;

(9) In any proceeding to determine the visitation rights of a noncustodial parent, there shall be a rebuttable presumption that the custodial parent's decision regarding visitation is in the best interests of the child. The presumption may be rebutted by evidence that denial of reasonable visitation rights would cause significant demonstrable harm to the child. In determining the noncustodial parent's visitation rights, the court shall consider factors including the following:

(A) The nature and extent of any preexisting relationship between the child and the noncustodial parent;

(B) Whether the noncustodial parent has previously been granted visitation by the custodial parent or the child's custodian and, if so, the nature and extent of the visitation;

(D) Whether the child has resided with the noncustodial parent and, if so, how recently and for how long;

(E) Whether the noncustodial parent has provided financial support to the child, including support for food, clothing, education, or medical, dental, or mental health care;

(F) If the custodial parent or custodian has denied the noncustodial parent visitation or substantially restricted visitation previously granted and whether the reason given, if any, bears on the noncustodial parent's ability to safely care for the child during visitation or relates to an issue between the noncustodial parent and custodial parent not directly related to the safe care of the child during visitation;

(G) All relevant elements of the safe family home factors under section 587A-7;

(H) All relevant factors under paragraphs (11) and (12) as they pertain to family violence committed by the noncustodial parent; and

(I) Whether the noncustodial parent has previously violated a temporary restraining order or protective order;

[~~(8)~~] (10) 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)~~] (11) 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)~~] (12) 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)~~] (13) 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)~~] (14) 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)~~] (15) If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation;

[~~(14)~~] (16) 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

[~~(15)~~] (17) The court may include in visitation awarded pursuant to this section visitation by electronic communication provided that the court shall additionally consider:

(A) 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;

(B) Whether the person seeking visitation has previously violated a temporary restraining order or protective order; and

(C) 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.

The court may set conditions for visitation by electronic communication, 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."

SECTION 2. Section 571-46.3, Hawaii Revised Statutes, is amended to read as follows:

"§571-46.3 Grandparents' visitation rights; petition; notice; order. (a) A grandparent or the grandparents of a minor child may file a petition with the court for an order of reasonable visitation rights. The court may award reasonable visitation rights; provided that the following criteria are met:

(1) This State is the home state of the child at the time of the commencement of the proceeding; and

(2) [~~Reasonable~~] Denial of reasonable visitation rights [~~are in the best interests of~~] would cause significant demonstrable harm to the child.

(b) In any proceeding on a petition filed pursuant to this section, there shall be a rebuttable presumption that a parent's decision regarding grandparents' visitation is in the best interests of the child. The presumption may be rebutted by evidence that denial of reasonable grandparents' visitation rights would cause significant demonstrable harm to the child. In ruling on the petition, the court shall consider factors including the following:

(1) The nature and extent of any pre-existing relationship between the child and the grandparent;

(2) Whether the grandparent has previously been granted visitation by the child's parent or custodian and, if so, the nature and extent of the visitation;

(3) Whether the grandparent has previously been awarded visitation rights or custody of the child by a court;

(4) Whether the child has resided with the grandparent, either alone or with a parent and if so, how recently and for how long;

(5) Whether the grandparent has provided financial support to the child, including for food, clothing, education, or medical, dental, or mental health care;

(6) Whether the child's parent or custodian has denied the grandparent visitation or substantially restricted visitation previously granted and whether the reason given, if any, bears on the grandparent's ability to safely care for the child during visitation or relates to an issue between the grandparent and parent not directly related to the safe care of the child during visitation;

(7) All relevant elements of the safe family home factors under section 587A-7;

(8) All relevant factors under section 571-46(a)(11) and (12) as they pertain to family violence committed by the grandparent or grandparents; and

(9) Whether the grandparent or grandparents have previously violated or assisted a parent of the child in violating a temporary restraining order or protective order.

(c) No hearing for an order of reasonable visitation rights under this section shall be had unless each of the living parents and the child's custodians [~~shall~~] have had due notice, actual or constructive, of the allegations of the petition and of the time and place of the hearing thereof.

(d) An order made pursuant to this section shall be enforceable by the court, and the court may issue other orders to carry out these enforcement powers if in the best interests of the child."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect on July 1, 2050.

HOUSE OF REPRESENTATIVES	H.B. NO.	2426
TWENTY-SIXTH LEGISLATURE, 2012		H.D. 1
STATE OF HAWAII