Visitation; Spouse Murder

Permits courts to order visitation rights for a parent who has
murdered the other parent of the child only if the physical
safety and the psychological well-being of the child can be
protected. (SD1)

THE SENATE                              S.B. NO.           591
TWENTIETH LEGISLATURE, 1999                                S.D. 1
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
19           an award of custody;

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                                     S.B. NO.           591
                                                        S.D. 1

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

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                                     S.B. NO.           591
                                                        S.D. 1

 1      (6)  Any custody award shall be subject to modification or
 2           change whenever the best interests of the child require
 3           or justify the modification or change and, wherever
 4           practicable, the same person who made the original
 5           order shall hear the motion or petition for
 6           modification of the prior award;
 7      (7)  Reasonable visitation rights shall be awarded to
 8           parents, grandparents, and any person interested in the
 9           welfare of the child in the discretion of the court,
10           unless it is shown that rights of visitation are
11           detrimental to the best interests of the child;
12      (8)  The court may appoint a guardian ad litem to represent
13           the interests of the child and may assess the
14           reasonable fees and expenses of the guardian ad litem
15           as costs of the action, payable in whole or in part by
16           either or both parties as the circumstances may
17           justify;
18      (9)  In every proceeding where there is at issue a dispute
19           as to the custody of a child, a determination by the
20           court that family violence has been committed by a
21           parent raises a rebuttable presumption that it is
22           detrimental to the child and not in the best interest
23           of the child to be placed in sole custody, joint legal

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                                     S.B. NO.           591
                                                        S.D. 1

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

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                                     S.B. NO.           591
                                                        S.D. 1

 1     (11)  In a visitation order, a court may:
 2           (A)  Order an exchange of a child to occur in a
 3                protected setting;
 4           (B)  Order visitation supervised by another person or
 5                agency;
 6           (C)  Order the perpetrator of family violence to attend
 7                and complete, to the satisfaction of the court, a
 8                program of intervention for perpetrators or other
 9                designated counseling as a condition of the
10                visitation;
11           (D)  Order the perpetrator of family violence to
12                abstain from possession or consumption of alcohol
13                or controlled substances during the visitation and
14                for twenty-four hours preceding the visitation;
15           (E)  Order the perpetrator of family violence to pay a
16                fee to defray the costs of supervised visitation;
17           (F)  Prohibit overnight visitation;
18           (G)  Require a bond from the perpetrator of family
19                violence for the return and safety of the child.
20                In determining the amount of the bond, the court
21                shall consider the financial circumstances of the
22                perpetrator of family violence;

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                                     S.B. NO.           591
                                                        S.D. 1

 1           (H)  Impose any other condition that is deemed
 2                necessary to provide for the safety of the child,
 3                the victim of family violence, or other family or
 4                household member; and
 5           (I)  Order the address of the child and the victim to
 6                be kept confidential;
 7     (12)  The court may refer but shall not order an adult who is
 8           a victim of family violence to attend counseling
 9           relating to the victim's status or behavior as a
10           victim, individually or with the perpetrator of family
11           violence, as a condition of receiving custody of a
12           child or as a condition of visitation;
13     (13)  If a court allows a family or household member to
14           supervise visitation, the court shall establish
15           conditions to be followed during visitation; and
16     (14)  A supervised visitation center must provide a secure
17           setting and specialized procedures for supervised
18           visitation and the transfer of children for visitation,
19           and provide supervision by a person trained in security
20           and the avoidance of family violence."
21      SECTION 2.  Statutory material to be repealed is bracketed.
22 New statutory material is underscored.
23      SECTION 3.  This Act shall take effect upon its approval.