Report Title:

Custodial Interference; Presumption

Description:

Establishes a rebuttable presumption of paternity as an affirmative defense to custodial interference.

HOUSE OF REPRESENTATIVES

H.B. NO.

694

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to custodial interference.

 

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

SECTION 1. The legislature finds that, under prior law, a parent interfering with another parent's custody by taking a child out-of-state, in the absence of a court order establishing custody, did not commit the offense of custodial interference. Because such action did not constitute an offense, no investigation to recover the child could occur until after a court order determining the child's custody had been issued. To resolve this problem, the legislature, through Act 146, Session Laws of Hawaii 1996, amended the offense of custodial interference in the first degree, to include abduction and removal of a child from the State in the absence of a court order and without good cause. The legislature continues to believe this provision is necessary to protect children from parents failing to act in good faith. However, the legislature finds that, in the absence of a court order establishing custody, the language of this provision is being interpreted as creating a presumption of custody in favor of a child's mother. Such presumption fails to recognize situations in which the child's natural father has assumed custodial care of a child. The purpose of this Act is to establish a rebuttable presumption of paternity as an affirmative defense to custodial interference.

SECTION 2. Section 707-726, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

"(2) It is an affirmative defense to a prosecution under this section that [the]:

(a) The person had "good cause" for the violation of a court order issued pursuant to chapter 586, for the taking, detaining, concealing, or enticing away of the minor, or for removing the minor from the State; provided that the person asserting the affirmative defense under this paragraph filed a report with the clerk of the family court detailing the whereabouts of the minor, the person who took, enticed, detained, concealed, or removed the minor or child, and the circumstances of the event as soon as the filing of the report was practicable; and provided further that the person asserting the affirmative defense also filed a request for a custody order as soon as the filing of the request was practicable[.]; or

(b) In the absence of a court order, judgment, or decree determining custody, the person is presumed to be the natural father of the child, as provided in section 584-4. This presumption may be rebutted in an appropriate action only by clear and convincing evidence.

As used in this section, "good cause" means a good faith and reasonable belief that the taking, detaining, concealing, enticing away, or removing of the minor is necessary to protect the minor from immediate bodily injury."

SECTION 3. Section 707-727, Hawaii Revised Statutes, is amended to read as follows:

"§707-727 Custodial interference in the second degree. (1) A person commits the offense of custodial interference in the second degree if:

(a) The person intentionally or knowingly takes, entices, conceals, or detains a minor knowing that the person has no right to do so; or

(b) The person intentionally or knowingly takes, entices, conceals, or detains from lawful custody any incompetent person, or other person entrusted by authority of law to the custody of another person or an institution.

(2) It is an affirmative defense to a prosecution under this section that the person is presumed to be the natural father of the child, as provided in section 584-4. This presumption may be rebutted in an appropriate action only by clear and convincing evidence.

[(2)] (3) Custodial interference in the second degree is a misdemeanor, if the minor or incompetent person is taken, enticed, concealed, or detained within the State. If the minor or incompetent person is taken, enticed, concealed, or detained outside of the State under this section, custodial interference in the second degree is a class C felony."

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:

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