Report Title:

Family Court; Court-Appointed Fact Finders; Review Commission

Description:

Replaces custody evaluators with court-appointed fact finders; establishes the family first revolving fund to pay the fees of court-appointed experts; establishes a family court review commission.

HOUSE OF REPRESENTATIVES

H.B. NO.

1298

TWENTY-THIRD LEGISLATURE, 2005

 

STATE OF HAWAII

 


 

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. This resolution authorized 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 interim hearings focused on important issues relating to reduction in caseload, limiting the long-term use of interventions such as temporary restraining orders and protective orders, ensuring greater accountability of court-appointed personnel such as custody evaluators and guardians ad litem, and examining ways to reduce the 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 service providers, 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 that adopted the findings and recommendations of the task force groups.

With respect to the issue of custody evaluators and guardians ad litem, members of this task force found that too much deference and weight is given to the findings and recommendations of custody evaluators, which improperly transfers judicial decision making authority from the family court judge to the custody evaluator. Further, this task force group found that there is little oversight and established standards relating to the performance of guardians ad litem and custody evaluators.

The purpose of this Act is to replace custody evaluators with court-appointed fact finders that only report facts relating to the care and welfare of the child and do not make recommendations concerning custody determinations to family court judges. Further, the judiciary, as opposed to private litigants, is now responsible for paying the fees of experts retained by the court to assist in custody determinations by utilizing the proceeds contained in the newly created family first revolving fund. Additionally, to address important issues relating to the accountability and oversight of the guardian ad litem and custody evaluator program, a family court review commission is established. This commission shall conduct an audit of these programs as well as examine increasing the use of alternative dispute resolution processes and procedures in family court proceedings to reduce family court-related litigation expenses and costs.

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

"§571-   Family first revolving fund. (a) There is established in the state treasury the family first revolving fund, to be administered by the judiciary, into which shall be deposited:

(1) All revenue derived from filing fees for divorce and child custody cases;

(2) Appropriations made by the legislature to the fund; and

(3) All interest earned by the assets of the fund.

(b) Moneys in the family first revolving fund shall be expended by the judiciary in order to retain and pay the expenses of any expert or person utilized by the family court in child custody determinations pursuant to section 571-46.

(c) Any amount to be deposited into the family first revolving fund from the revenues collected under this chapter that causes the family first revolving fund to exceed $          , shall be deposited into the general fund. No further deposits from the revenues collected under this chapter shall be made into the family first revolving fund until the balance of the family first revolving fund drops below $          , in which event the two and one-half per cent of the revenues collected under this chapter shall be deposited into the family first revolving fund until the balance equals $          ."

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. 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;

(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] court-appointed fact finders attached to or assisting the court shall make investigations and reports which shall contain only facts relating to the care and welfare of a minor child and exclude any recommendations relating to the custody of the minor child. The fees and costs incurred by court-appointed fact finders in producing a report or conducting an investigation shall be determined pursuant to the fee schedule set forth in section 571-  . All reports and investigations 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[;]. Compensation for the services of this person or expert shall be made from the family first revolving fund;

(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 to represent the interests of the child and may assess the reasonable fees and expenses of the guardian ad litem as costs of the action, payable in whole or in part by either or both parties as the circumstances may justify;

(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 secure setting and specialized procedures for supervised visitation and the transfer of children for visitation and supervision by a person trained in security and the avoidance of family violence."

SECTION 4. (a) There is established within the judiciary, for administrative purposes, a family court review commission. This commission shall review and conduct an audit of the Hawaii family court in the first judicial circuit, including the custody evaluator program and all other court-appointed service providers, such as guardians ad litem. This commission shall also examine issues relating to increasing the use of alternative dispute resolution in the Hawaii family court in the first judicial circuit in order to reduce family court related litigation expenses and costs.

(b) The family court review commission shall be composed of members knowledgeable about the custody evaluator and guardians ad litem programs as well as alternative dispute resolution processes and shall be comprised of the following individuals:

(1) The attorney general or a designated representative;

(2) The director of human services or a designated representative;

(3) The Hawaii State Bar Association family law section chair or a designated representatives;

(4) A representative from the Domestic Violence Clearinghouse and Legal Hotline;

(5) A representative from the Na Keiki Law Center;

(6) The director or a designated representative from the Legal Aid Society of Hawaii;

(7) The director or a designated representative from the Mediation Center of the Pacific;

(8) A representative from the Children's Rights Council of Hawaii;

(9) Two members of the community appointed by the senate president; and

(10) Two members of the community appointed by the speaker of the house of representatives.

(c) The family court review commission shall review the following matters:

(1) Implementing an impartial, unbiased, and expeditious complaint and review process for guardians ad litem and custody evaluators;

(2) Conducting an unbiased evaluation and audit of the custody evaluator program and guardian ad litem program, including an examination of all policies, procedures, and authorizing laws;

(3) Examining custody evaluation programs implemented in other states;

(4) Establishing an impartial, unbiased, resolution process for family court cases, including the expansion of alternative dispute resolution programs in family court proceedings for high conflict divorce cases;

(5) Examining the use of parent coordinators, such as in Vermont, as well as parenting plans to resolve issues relating to visitation, exchanges, health and safety issues, and improving communication between the parties; and

(6) Providing additional information on the judiciary website relating to the divorce process in Hawaii, available legal and social services for families and children in the process of a divorce, and contact information relating to alternative dispute resolution programs and processes in the community.

(d) The family court review commission shall hold public hearings to receive testimony and information from the public on the custody evaluator and guardian ad litem programs, as well as expanding and implementing alternative dispute resolution programs and processes in the family court of the first judicial circuit.

The family court review commission is further directed to make recommendations relating to the implementation of alternative dispute resolution programs and processes in the Hawaii family court of the first judicial circuit, amendments to the existing custody evaluator and guardian ad litem programs, enabling legislation or rules for any court-appointed fact finder program, and rules of procedure. The family court review commission shall submit a report of its findings and recommendations to the legislature not less than twenty days before the convening of the regular session of 2006.

The judicial council shall supervise the family court review commissions, with staffing assistance from the judiciary as assigned by the chief justice or administrative director.

The family court review commission shall cease to exist on June 30, 2006.

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

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:

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