Visitation; Spouse Murder

Prohibits courts from ordering visitation rights for a parent who
has murdered the other parent of the child.

THE SENATE                              S.B. NO.           591
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Section 571-46, Hawaii Revised Statutes, is
 2 amended to read as follows:
 3      "571-46  Criteria and procedure in awarding custody and
 4 visitation.  In the actions for divorce, separation, annulment,
 5 separate maintenance, or any other proceeding where there is at
 6 issue a dispute as to the custody of a minor child, the court,
 7 during the pendency of the action, at the final hearing, or any
 8 time during the minority of the child, may make an order for the
 9 custody of the minor child as may seem necessary or proper.  In
10 awarding the custody, the court shall be guided by the following
11 standards, considerations, and procedures:
12      (1)  Custody should be awarded to either parent or to both
13           parents according to the best interests of the child;
14      (2)  Custody may be awarded to persons other than the father
15           or mother whenever the award serves the best interest
16           of the child.  Any person who has had de facto custody
17           of the child in a stable and wholesome home and is a
18           fit and proper person shall be entitled prima facie to

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 1           an award of custody;
 2      (3)  If a child is of sufficient age and capacity to reason,
 3           so as to form an intelligent preference, the child's
 4           wishes as to custody shall be considered and be given
 5           due weight by the court;
 6      (4)  Whenever good cause appears therefor, the court may
 7           require an investigation and report concerning the
 8           care, welfare, and custody of any minor child of the
 9           parties.  When so directed by the court, investigators
10           or professional personnel attached to or assisting the
11           court shall make investigations and reports which shall
12           be made available to all interested parties and counsel
13           before hearing, and the reports may be received in
14           evidence if no objection is made and, if objection is
15           made, may be received in evidence provided the person
16           or persons responsible for the report are available for
17           cross-examination as to any matter that has been
18           investigated;
19      (5)  The court may hear the testimony of any person or
20           expert produced by any party or upon the court's own
21           motion, whose skill, insight, knowledge, or experience
22           is such that the person's or expert's testimony is

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 1           relevant to a just and reasonable determination of what
 2           is for the best physical, mental, moral, and spiritual
 3           well-being of the child whose custody is at issue;
 4      (6)  Any custody award shall be subject to modification or
 5           change whenever the best interests of the child require
 6           or justify the modification or change and, wherever
 7           practicable, the same person who made the original
 8           order shall hear the motion or petition for
 9           modification of the prior award;
10      (7)  Reasonable visitation rights shall be awarded to
11           parents, grandparents, and any person interested in the
12           welfare of the child in the discretion of the court,
13           unless it is shown that rights of visitation are
14           detrimental to the best interests of the child;
15      (8)  The court may appoint a guardian ad litem to represent
16           the interests of the child and may assess the
17           reasonable fees and expenses of the guardian ad litem
18           as costs of the action, payable in whole or in part by
19           either or both parties as the circumstances may
20           justify;
21      (9)  In every proceeding where there is at issue a dispute
22           as to the custody of a child, a determination by the

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                                     S.B. NO.           591

 1           court that family violence has been committed by a
 2           parent raises a rebuttable presumption that it is
 3           detrimental to the child and not in the best interest
 4           of the child to be placed in sole custody, joint legal
 5           custody, or joint physical custody with the perpetrator
 6           of family violence.  In addition to other factors that
 7           a court must consider in a proceeding in which the
 8           custody of a child or visitation by a parent is at
 9           issue, and in which the court has made a finding of
10           family violence by a parent:
11           (A)  The court shall consider as primary the safety and
12                well-being of the child and of the parent who is
13                the victim of family violence;
14           (B)  The court shall consider the perpetrator's history
15                of causing physical harm, bodily injury, assault,
16                or causing reasonable fear of physical harm,
17                bodily injury, or assault, to another person; and
18           (C)  If a parent is absent or relocates because of an
19                act of family violence by the other parent, the
20                absence or relocation [is] shall not be a factor
21                that weighs against the parent in determining
22                custody or visitation;

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                                     S.B. NO.           591

 1     (10)  A court may award visitation to a parent who committed
 2           family violence only if the court finds that adequate
 3           provision for the safety of the child and the parent
 4           who is a victim of family violence can be made;
 5           provided that no court shall make an order providing
 6           visitation rights for a child to a parent who has been
 7           convicted of murder of the other parent of the child,
 8           unless the child is of suitable age to assent to the
 9           visitation and does so assent; provided further that
10           until such order is issued, the child shall visit the
11           parent who has been convicted only with the consent of
12           the child's custodian or legal guardian;
13     (11)  In a visitation order, a court may:
14           (A)  Order an exchange of a child to occur in a
15                protected setting;
16           (B)  Order visitation supervised by another person or
17                agency;
18           (C)  Order the perpetrator of family violence to attend
19                and complete, to the satisfaction of the court, a
20                program of intervention for perpetrators or other
21                designated counseling as a condition of the
22                visitation;

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                                     S.B. NO.           591

 1           (D)  Order the perpetrator of family violence to
 2                abstain from possession or consumption of alcohol
 3                or controlled substances during the visitation and
 4                for twenty-four hours preceding the visitation;
 5           (E)  Order the perpetrator of family violence to pay a
 6                fee to defray the costs of supervised visitation;
 7           (F)  Prohibit overnight visitation;
 8           (G)  Require a bond from the perpetrator of family
 9                violence for the return and safety of the child.
10                In determining the amount of the bond, the court
11                shall consider the financial circumstances of the
12                perpetrator of family violence;
13           (H)  Impose any other condition that is deemed
14                necessary to provide for the safety of the child,
15                the victim of family violence, or other family or
16                household member; and
17           (I)  Order the address of the child and the victim to
18                be kept confidential;
19     (12)  The court may refer but shall not order an adult who is
20           a victim of family violence to attend counseling
21           relating to the victim's status or behavior as a
22           victim, individually or with the perpetrator of family

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                                     S.B. NO.           591

 1           violence, as a condition of receiving custody of a
 2           child or as a condition of visitation;
 3     (13)  If a court allows a family or household member to
 4           supervise visitation, the court shall establish
 5           conditions to be followed during visitation; and
 6     (14)  A supervised visitation center must provide a secure
 7           setting and specialized procedures for supervised
 8           visitation and the transfer of children for visitation,
 9           and provide supervision by a person trained in security
10           and the avoidance of family violence."
11      SECTION 2.  Statutory material to be repealed is bracketed.
12 New statutory material is underscored.
13      SECTION 3.  This Act shall take effect upon its approval.
15                           INTRODUCED BY:  _______________________