Report Title:

Family Court; Shared Parenting

Description:

Requires that custody shall be awarded to assure frequent, continuing, and appropriate contact with both parents and encourages both parents to share the responsibility of raising their child. Requires the submission of a parenting plan with a divorce complaint and answer. (SB556 HD1)

THE SENATE

S.B. NO.

556

TWENTY-THIRD LEGISLATURE, 2005

S.D. 2

STATE OF HAWAII

H.D. 1


 

A BILL FOR AN ACT

 

relating to family court.

 

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

SECTION 1. In the 2004 legislative session, the senate adopted Senate Resolution 40 authorizing the senate committee on human services to convene interim hearings on the Hawaii family court. Specifically, the hearings were designed to explore ways to make the Hawaii family court more accessible and family oriented. These hearings focused on important issues relating to:

(1) Reducing caseloads;

(2) Limiting the long-term use of interventions such as temporary restraining orders and protective orders;

(3) Ensuring greater accountability of court-appointed personnel such as custody evaluators and guardians ad litem; and

(4) Examining ways to reduce needless expenditures of time and money in counterproductive litigation relating to child custody determinations.

During the course of these interim hearings, four task force groups were formed on four important issues relating to joint custody, temporary restraining orders and protective orders, standards for guardians ad litem and other court appointed personnel, and alternative dispute resolution. After countless hours of hard work and meetings, these four task force groups submitted findings and recommendations to the senate committee on human services, which adopted several recommendations.

With respect to the issue of joint custody, members of this task force recommended creating a rebuttable presumption in favor of shared parenting. The task force members found that children recover faster from a parent's divorce or separation when there is less emotional trauma associated with the process, and that co-parenting arrangements reduce a child's post-separation distress as well as minimize feelings of alienation and anger. Moreover, parents who do not experience prolonged litigation in their divorce and separation are able to regain financial and emotional security for their families.

It is the policy of this State to ensure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their child. The purpose of this Act is to encourage shared parenting in custody determinations that will encourage frequent and continuing contact with both parents, and which will encourage parents to share the rights and responsibilities of the child when it is in the best interest of the child and developmentally appropriate, and there is no family violence. A parenting plan will be created to assist divorce or separating parents in this critical transition process.

SECTION 2. Chapter 571, Hawaii Revised Statutes, is amended by adding a new section to part V to be appropriately designated and to read as follows:

"§571-   Parenting plans. (a) For every action that includes a contested custody of children, both parties or both parents shall develop either a mutually agreed-upon general parenting plan or separate individually-desired parenting plan, and file the plan with the divorce complaint or answer.

(b) A parenting plan may include a general outline relating to parental responsibilities and parenting time. A general parenting plan may also allow the parents to develop a more detailed agreement on an informal basis.

(c) A detailed parenting plan may include but is not limited to provisions relating to:

(1) Residential schedule;

(2) Holiday, birthday, and vacation planning;

(3) Parental decision-making and responsibility;

(4) Breastfeeding;

(5) Information sharing and access;

(6) Relocation of parents;

(7) Telephone access and other means of communication;

(8) Right of first refusal procedures;

(9) Transportation;

(10) Sharing child-related expenses not otherwise specified; and

(11) Methods for changing or enforcing the parenting plan and for resolving disputes.

(d) If the divorcing parties or parents are unable to mutually develop and agree upon a parenting plan, the court shall develop and file a detailed parenting plan when requested by either of the parties or parents. The court may revise and amend the parenting plan from time to time."

SECTION 3. Section 571-46, Hawaii Revised Statutes, is amended to read as follows:

"§571-46 Criteria and procedure in awarding custody and visitation. In the actions for divorce, separation, annulment, separate maintenance, or any other proceeding where there is at issue a dispute as to the custody of a minor child, the court, during the pendency of the action, at the final hearing, or any time during the minority of the child, may make an order for the custody of the minor child as may seem necessary or proper. The court shall make written findings for every order issued pursuant to this section, including those applying to or rebutting any statutory presumptions. In awarding the custody, the court shall be guided by the following standards, considerations, and procedures:

(1) Custody should be awarded to either parent or to both parents according to the best interests of the child[;] and shall be awarded in such a manner as to:

(A) Assure the frequent, continuing, and meaningful contact of both parents who have shown the ability to act and reach shared decisions in the best interests of their child; and

(B) Encourage both parents to share the rights and responsibilities of raising the child, unless the court makes a written finding that one parent is more likely to allow the child frequent, continuing, and meaningful contact with the other parent or is more capable of encouraging and accepting a positive relationship between the child and the other parent;

(2) Custody may be awarded to persons other than the father or mother whenever the award serves the best interest of the child. Any person who has had de facto custody of the child in a stable and wholesome home and is a fit and proper person shall be entitled prima facie to an award of custody;

(3) If a child is of sufficient age and capacity to reason, so as to form an intelligent preference, the child's wishes as to custody shall be considered and be given due weight by the court;

(4) Whenever good cause appears therefor, the court may require an investigation and report concerning the care, welfare, and custody of any minor child of the parties. When so directed by the court, investigators or professional personnel attached to or assisting the court shall make investigations and reports which shall be made available to all interested parties and counsel before hearing, and the reports may be received in evidence if no objection is made and, if objection is made, may be received in evidence; provided the person or persons responsible for the report are available for cross-examination as to any matter that has been investigated;

(5) The court may hear the testimony of any person or expert, produced by any party or upon the court's own motion, whose skill, insight, knowledge, or experience is such that the person's or expert's testimony is relevant to a just and reasonable determination of what is for the best physical, mental, moral, and spiritual well-being of the child whose custody is at issue;

(6) Any custody award shall be subject to modification or change whenever the best interests of the child require or justify the modification or change and, wherever practicable, the same person who made the original order shall hear the motion or petition for modification of the prior award;

(7) Reasonable visitation rights shall be awarded to parents, grandparents, siblings, and any person interested in the welfare of the child in the discretion of the court, unless it is shown that rights of visitation are detrimental to the best interests of the child;

(8) The court may appoint a guardian ad litem, custody evaluator, or investigator to represent the interests of the child and may assess the reasonable fees and expenses of the guardian ad litem, custody evaluator, or investigator as costs of the action, payable in whole or in part by either or both parties as the circumstances may justify[;]. If the child expresses a preference regarding any parenting plan, custody, or visitation issues and informs the guardian ad litem, custody evaluator, or investigator of the child's preference, the guardian ad litem, custody evaluator, or investigator shall inform the court of the child's wishes;

(9) In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that family violence has been committed by a parent raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence. In addition to other factors that a court must consider in a proceeding in which the custody of a child or visitation by a parent is at issue, and in which the court has made a finding of family violence by a parent:

(A) The court shall consider as the primary factor the safety and well-being of the child and of the parent who is the victim of family violence;

(B) The court shall consider the perpetrator's history of causing physical harm, bodily injury, or assault or causing reasonable fear of physical harm, bodily injury, or assault to another person; and

(C) If a parent is absent or relocates because of an act of family violence by the other parent, the absence or relocation shall not be a factor that weighs against the parent in determining custody or visitation;

(10) A court may award visitation to a parent who committed family violence only if the court finds that adequate provision can be made for the physical safety and psychological well-being of the child and for the safety of the parent who is a victim of family violence;

(11) In a visitation order, a court may:

(A) Order an exchange of a child to occur in a protected setting;

(B) Order visitation supervised by another person or agency;

(C) Order the perpetrator of family violence to attend and complete, to the satisfaction of the court, a program of intervention for perpetrators or other designated counseling as a condition of the visitation;

(D) Order the perpetrator of family violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and for twenty-four hours preceding the visitation;

(E) Order the perpetrator of family violence to pay a fee to defray the costs of supervised visitation;

(F) Prohibit overnight visitation;

(G) Require a bond from the perpetrator of family violence for the return and safety of the child. In determining the amount of the bond, the court shall consider the financial circumstances of the perpetrator of family violence;

(H) Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of family violence, or other family or household member; and

(I) Order the address of the child and the victim to be kept confidential;

(12) The court may refer but shall not order an adult who is a victim of family violence to attend, either individually or with the perpetrator of the family violence, counseling relating to the victim's status or behavior as a victim as a condition of receiving custody of a child or as a condition of visitation;

(13) If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation; [and]

(14) A supervised visitation center must provide: [a]

(A) A secure setting and specialized procedures for supervised visitation; and [the]

(B) The transfer of children for visitation and supervision by a person trained in security and the avoidance of family violence[.];

and

(15) In actions for annulment, divorce, or separation involving the custody of a minor child, the request by either parent or party for joint custody creates a rebuttable presumption, affecting the burden of proof, that joint custody is in the best interests of the minor child. In case of inconsistencies with other presumptions or standards, the best interests of the child and safety of the parties shall take precedence."

SECTION 4. Section 571-46.1, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) For the purposes of this section, "joint custody" means an order awarding legal custody of the minor child or children to both parents and providing that physical custody shall be shared by the parents, pursuant to a parenting plan developed pursuant to section 571-  , in such a way as to assure the child or children of frequent, continuing, and meaningful contact with both parents; provided, however, that such order may award joint legal custody without awarding joint physical custody."

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect on July 1, 2050.