Report Title:

Family Court Responsibilities

Description:

Expands the responsibilities of family court judges, specifically under chapter 710, Hawaii Revised Statutes.

HOUSE OF REPRESENTATIVES

H.B. NO.

1338

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to family court responsibilities.

 

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

SECTION 1. Chapter 571, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§571-    Responsibilities. (a) Family court judges shall:

(1) Formally report any probable offense under chapter 710 encountered or identified during any judicial hearing, trial, or official proceeding to the prosecuting attorney of the county in which the offense occurred and notify the affected parties and the senior family court judge. In determining whether an offense is probable, not every element of the offense need be proven beyond a reasonable doubt, but sufficient credible evidence or reasonable grounds must exist to warrant an investigation. The formal reporting requirement shall apply to probable offenses by an person, agent, or entity;

(2) Not allow an offending party to benefit from violations of chapter 710 and shall reverse all harm to the aggrieved party caused by such violations that occurred prior to a final judgment by reconsidering and appropriately modifying all such affected agreements, judgments, orders, findings, conclusions, and awards of fees or costs. A violation, by any person, agent, or entity, shall be deemed to exist when substantial evidence of an offense exists;

(3) Carry out contempt proceedings against any person, agent, or entity with either three or more formal reports of probable offenses or two or more violations of chapter 710, if not already done so, in the same or related cases. A violation shall be deemed to exist when substantial evidence of an offense exists. Sanctions and penalties shall increase in severity with each subsequent violation to deter continued violations;

(4) Ensure that all communications related to a hearing, case, or official proceeding, other than those strictly pertaining to scheduling issues, are conducted on the record and are either electronically or stenographically recorded to preserve the communications for the record on appeal. Judges shall not conduct off-the-record conferences or attorney-only communications without the express informed consent of the parties involved, either in writing or orally on the record, waiving their right to be present and acknowledging that such communications will not be part of the record in any potential appeal;

(5) Not set arbitrary or fixed time limits for hearings, proceedings, or trials. Instead, the time required to complete hearings, proceedings, or trials shall depend on the particular facts and circumstances of each case. Judges shall ensure that each party has sufficient time to present a meaningful case, to include the entering of all desired exhibits, the examining of all witnesses, and the making of complete arguments;

(6) Ensure that the same judge presides over all aspects of related family court proceedings or cases. If it is not possible for the judge to do so, a specific finding shall be made justifying or explaining why a different judge presided over a proceeding or hearing in a case;

(7) Not automatically construe an equal division of assets as a fair and equitable resolution but shall determine what is fair and equitable based on the facts and circumstances of each individual case and according to the applicable law;

(8) Ensure that implicit or explicit gender bias does not affect, influence, or occur in any ruling, order, judgment, finding, or conclusion;

(9) Ensure that implicit or explicit attorney bias does not affect, influence, or occur in any ruling, order, judgment, finding, or conclusion;

(10) Construe pro se complaints and pleadings liberally, hold such complaints and pleadings to less stringent standards than formal pleadings drafted by attorneys, and apply a more flexible standard in determining the sufficiency of pro se complaints and pleadings. Judges shall not dismiss legally deficient pro se pleadings unless it is beyond doubt that no set of facts can be proven to support the claim or requested relief;

(11) Refrain from making any statements or taking any actions that might cause duress, coercion, or undue influence or create any other circumstances that may result in a party not freely and voluntarily entering into any agreement, stipulation, settlement, or compromise. Judges shall not predict rulings or outcomes that may influence negotiations, agreements, stipulations, settlements, or compromises;

(12) Not assign a guardian ad litem or master to a case over the objections of the parties. If the issue of assignment is contested and a guardian ad litem or master is appointed, judges shall make specific findings justifying:

(A) The necessity of a guardian ad litem or master;

(B) What functions or roles the guardian ad litem or master will serve;

(C) What reports or information will be produced;

(D) What decisions the judge is seeking assistance in making; and

(E) Why such functions, roles, reports, or information cannot be performed or produced by the parties or their attorneys for ultimate judicial review. The findings shall include a justification for the costs of a guardian ad litem or master as compared to judicial rulings on the contested issues following evidentiary hearings;

(13) Not make any orders requiring parties to pay their own attorneys, mediators, or experts or any guardians ad litem or masters assigned by the court. Judges shall not make any rulings, orders, judgments, or awards compensating or paying attorneys, mediators, experts, guardians ad litem, or masters from the marital moneys or assets or personal moneys or assets of any party. Judges may assign fees and costs to a party but shall not dictate the method, type, or manner of payment. Judges may advance or award moneys or assets to a party but shall not require or order that the moneys or assets be used to pay attorneys, mediators, experts, guardians ad litem, or masters;

(14) Brief each party at the initial hearing or upon joinder on the specific duties and responsibilities of judges under this section. Judges shall also explain:

(A) Their inherent and contempt powers;

(B) How such powers serve to ensure the proper and orderly administration of justice;

(C) The use of sanctions; and

(D) The actions that may result in the exercise of such powers, duties, and responsibilities;

and

(15) In cases identified as extremely adversarial, take additional time and effort to ensure that abuse of process and other kinds of misconduct by the parties do not occur.

(b) The senior family court judge shall:

(1) Establish and maintain a process and procedures for certifying guardians ad litem and masters. No guardians ad litem or masters who are not certified shall be appointed. In addition, no guardian ad litem or master who is not certified shall be deemed to be certified without undergoing and completing the process for certification. The process and procedures for certification shall include:

(A) Standards of competency;

(B) A minimum level of education, including specific degrees required;

(C) A minimum level of experience, including documented prior experience;

(D) Training in and knowledge of the judicial system;

(E) Training in and knowledge of specific duties of guardians ad litem and masters;

(F) For guardians ad litem, an understanding of the issues of domestic violence and child abuse;

(G) For guardians ad litem, training in and knowledge of interview, assessment, testing, reporting, and custody-evaluation procedures;

(H) For masters, training in and knowledge of alternative dispute resolution, discovery, rules of evidence, and trial procedures; and

(I) A continuing education requirement.

Appointed guardians ad litem and masters shall not have immunity and shall remain subject to all professional and regulatory codes governing their actions;

(2) Establish a set of factors that indicate a case is extremely adversarial. The factors shall include:

(A) Excessive costs; and

(B) Excessive delay in resolution of the dispute.

The senior family court judge shall identify such cases as early as possible and bring them to the attention of the presiding or assigned family court judge; and

(3) Monitor and ensure that the family court is in compliance with this section."

SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

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