Report Title:

Presumption of Joint Custody in Divorce Cases

 

 

Description:

Creates a presumption in favor of joint custody, or "shared parenting" in divorce child custody cases where parents have an existing joint custody relationship and there is no finding of family violence or other question regarding the child's well-being.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1449

TWENTY-FOURTH LEGISLATURE, 2007

 

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.  The legislature finds that the current system for awarding custody in divorce and other similar actions may encourage parents to engage in unnecessarily adversarial, prolonged litigation, and to develop entrenched, highly conflicted positions that are not based on the child's best interests.  The purpose of this Act is to give certain divorcing parents a procedural option that is in the best interests of their children.  In specific controlled cases where there is a pre-existing shared custody relationship, no finding of family violence, and the parents have filed a parenting plan with the court, this Act creates a rebuttable presumption in favor of joint custody, or "shared parenting".

For the presumption to exist, the divorcing or separating parents must develop parental plans together, and make decisions and agreements on how to best parent their children during the critical transition to divorce.  These procedures may assist parents in using more effective interaction techniques with one another, and may help to improve their parenting skills.

The shared parenting option is intended to minimize unnecessary harmful conflict and needless litigation, maintain the continuity of the pre-existing custody relationship, and provide for the child's psychological stability and well-being at the outset of a contested custody action.  It creates an environment that continues joint custody of the children and keeps both parents involved in their children's lives to the maximum extent possible.

The purpose of this Act is to give divorcing parents in custody disputes, a procedural option that is in the best interests of their children, by creating in cases where there is no finding of family violence and joint custody is in the best interests of the child, a rebuttable presumption of joint custody at the outset of a divorce.

     SECTION 2.  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, and the court may also consider frequent, continuing, and meaningful contact of each parent with the child unless the court finds that a parent is unable to act in the best interest of the child;

(2)  There shall be a rebuttable presumption that joint custody should be awarded if each of the following elements exist:

(A)  The parents or parties, at the time the action was initiated, exercised joint custody over the child whose custody is contested;

(B)  Both parents or parties have, or had prior to the action, a "meaningful contact" relationship with the child;

(C)  Either or both parents or parties request or apply for joint custody of the child;

(D)  There is no determination by the court pursuant to section 571-46(9) that family violence has been committed by either parent or party;

(E)  The parents or parties requesting joint custody have filed with the court a parenting plan pursuant to section 571-46.5 that is sufficiently detailed to support an award of joint custody; and

(F)  No court finding or conclusions exist that show joint custody is not in the best interest of the child or that the parents or parties requesting joint custody are unable to act in the best interest of the child;

    [(2)] (3) 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)] (4) 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)] (5) 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)] (6) 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)] (7) 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)] (8) 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)] (9) 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)] (10) 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)] (11) 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)] (12) 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)] (13) 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)] (14) If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation; and

[(14)] (15) 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 3.  Section 571-46.1, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Upon the application of either parent, joint custody may be awarded pursuant to section 571-46(2) at the outset of the contested custody action, or later, in the discretion of the court.  For the purpose of assisting the court in making a determination whether an award of joint custody should continue, or is appropriate, the court shall, upon the request of either party, direct that an investigation be conducted pursuant to the provisions of section [571-46(4).] 571-46(5).  If such an investigation is ordered, a joint custody award pursuant to section 571-46(2) shall not be delayed for investigation purposes, and the investigation shall be conducted in parallel with existing custody awards."

     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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