Bill Text: HI SB2217 | 2014 | Regular Session | Introduced

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Bill Title: Child Custody; Grandparent Visitation

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Introduced - Dead) 2014-02-04 - The committee on HMS deferred the measure. [SB2217 Detail]

Download: Hawaii-2014-SB2217-Introduced.html

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THE SENATE	S.B. NO.	2217
TWENTY-SEVENTH LEGISLATURE, 2014
STATE OF HAWAII

A BILL FOR AN ACT

 

 

RELATING TO CHILD VISITATION.

 

 

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

 

     SECTION 1.  The legislature finds that section 571-46.3, Hawaii Revised Statutes, was enacted to permit grandparents to seek visitation with their grandchildren where it is "in the best interests of the child."  The legislature left no doubt that it intended to permit a court to order visitation by a minor child's grandparents, even over a parent's objection, if found by a court to be in the best interests of the child.  The senate committee on judiciary found that "grandparents play a significant role in the lives of minor children and should be allowed reasonable visitation rights so long as it is in the best interests of the child."  Senate Stand. Comm. Rep. No. 1053, 1993 Senate Journal, at 1154.  The house committee on judiciary found that "In today's society grandparents play an integral part in the lives of children.  In the United States, millions of grandparents care for their grandchildren when parents are away.  Your Committee believes that there are times when visitation by grandparents is in the best interest of the child and thus should be encouraged."  House Stand. Comm. Rep. No. 611-98, 1998 House Journal, at 1276.

     The legislature also finds that in Troxel v. Granville, 530 U.S. 57 (2000), the United States Supreme Court considered a challenge to a similar Washington state statute that permitted anyone to seek visitation when it serves the "best interest of the child."  The Washington supreme court had concluded that the statute unconstitutionally infringes on the fundamental rights of parents to rear their children because it did not require a showing that harm would result from lack of visitation.  The United States Supreme Court upheld the Washington supreme court's decision, observing that the problem was not that the trial court intervened but that, when it did so, it failed to give "special weight" to the determination of a fit parent as to what was in her child's best interests.

     Following Troxel, in Doe v. Doe, 116 Hawaii 323 (2007), the Hawaii supreme court considered whether a court may order grandparent visitation under section 571-46.3, Hawaii Revised Statutes, absent a showing of harm or potential harm to the child.  The Hawaii supreme court tried to determine whether the statute could be saved by requiring the family court to give special weight--to effectively apply a rebuttable presumption of validity--to the visitation decisions of a custodial parent whose fitness has not been challenged.

     The Hawaii supreme court held that the statute must require a showing that denial of visitation to the nonparent would result in significant harm to the child, before a court considers what degree of visitation is in the child's best interests.  However, the court found that it could not go so far as to read a "harm to the child" standard into the statute because it uses the term "best interests of the child" and that to do so would constitute "judicial legislation" prohibited by the doctrine of separation of powers.  Accordingly, the Hawaii supreme court concluded that, absent a substantive amendment by the legislature adding the "harm to the child" standard, the statute is unconstitutional on its face.

     To address the Doe decision, the legislature in 2011 passed House Bill No. 56, which explicitly gave "special weight" to the parent's decision regarding grandparent visitation by applying a rebuttable presumption that it is in the "best interests of the child."  The measure also required a showing that denial of visitation to the grandparent would result in "significant harm to the child" to overcome that presumption.  As introduced, the bill established "preponderance of the evidence" as the burden of proof necessary to rebut the presumption that parental visitation decisions are in the child's best interests.  However, at the request of the American Civil Liberties Union of Hawaii, the bill was amended to increase the burden of proof to "clear and convincing evidence" and it was passed with that requirement.

     Ultimately, the governor vetoed House Bill No. 56, in part because of his belief that "it will be too difficult for grandparents to show by clear and convincing evidence that the denial of visitation will cause significant demonstrable harm to the child."  The governor went on to say that while he recognized the parents' constitutional right to raise their child as they see fit, he also recognized that grandparents often have a significant role in children's lives and should be able to visit their grandchildren.

     The legislature also finds that section 571-46.3, Hawaii Revised Statutes, having been found unconstitutional as presently written, must either be fixed or repealed.  It cannot remain in its current form because it provokes unwarranted concern in the minds of custodial parents and offers no relief to grandparents concerned about the effect of their grandchildren being denied visitation with their grandparents.  Because the legislature believes that denying children visitation with their grandparents, in certain circumstances, may cause harm to the children, the statute must be amended, rather than repealed, in a way that makes it both constitutional and practical to apply.

     The legislature also finds that neither the Troxel nor the Doe decision specified the burden of proof necessary to overcome the rebuttable presumption that the parent's visitation decision is in the best interests of the child.  In child protective proceedings pursuant to chapter 587A, Hawaii Revised Statutes, adjudications involving determinations that a child has been harmed or is subjected to threatened harm must be supported by a preponderance of the evidence.  Section 587A-4, Hawaii Revised Statutes.  By contrast, permanent plans, including complete termination of parental rights, may be ordered only on the basis of clear and convincing evidence.  Section 587A-33, Hawaii Revised Statutes.

     The legislature further finds that visitation orders are only temporary because the court retains jurisdiction over custody matters until the child reaches the age of majority, section 571-46(a), Hawaii Revised Statutes, and that authorizing grandparent visitation in appropriate cases does not require the level of proof necessary for termination of parental rights.  Accordingly, this Act specifies that the presumption that a parent's denial of grandparent visitation is in the best interests of the child may be rebutted by a preponderance of the evidence that denial of visitation will cause significant harm to the child.

     The purpose of this Act is to promote the best interests of children by permitting a court to order visitation with their grandparents when the preponderance of the evidence proves that denial of visitation will cause significant harm to a child.

     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 harm to the child.

     (b)  In any proceeding on a petition filed under this section, there shall be a rebuttable presumption that the parent's decision regarding visitation is in the best interests of the child.  The presumption may be rebutted by a preponderance of the evidence that denial of reasonable visitation rights would cause significant harm to the child.  In ruling on the petition, the court may 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 was a primary caregiver for the child and, if so, for how long;

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

     (7)  The amount of visitation time requested and the potential for adverse impact on the child's customary activities;

     (8)  The physical and mental health of the child and the grandparent;

     (9)  The good faith of the grandparent and the parent or custodian denying visitation;

    (10)  If the parent or custodian has denied the grandparent visitation or substantially restricted visitation previously granted, 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 safe care of the child during visitation;

    (11)  The child's preference; provided that the court finds the child is of sufficient maturity to state a preference;

    (12)  Any relevant factor in the safe family home factors under section 587A-7; and

    (13)  Any other factor that establishes that the loss of relationship between the grandparent and the child is likely to harm the child's mental, physical, or emotional health.

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

     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:

Child Custody; Grandparent Visitation

 

Description:

Permits family court to award reasonable visitation to grandparents of a child if denial of visitation would cause significant harm to the child.  Establishes presumption that visitation decisions by parent are in the best interests of the child.  Presumption may be rebutted by a preponderance of the evidence.  Identifies factors court may consider in awarding visitation.

 

 

 

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