HOUSE OF REPRESENTATIVES

H.B. NO.

2089

TWENTY-EIGHTH LEGISLATURE, 2016

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

Relating to FAMILY COURT PROTECTIVE orders.

 

 

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

 


SECTION 1. The legislature finds that family court temporary restraining orders and orders for protection, tools meant for protection and justice in our judicial system, are sometimes utilized instead as tools for mayhem in personal disputes, and filed falsely with the goal of disrupting personal lives. This places unnecessary burden on our already-stressed family court system, and adversely impacts potentially innocent persons in terms of time defending against baseless accusations, multiple trips to attorneys, the courthouse, and time and expense spent on litigation.

The legislature also finds that while protective orders serve the purpose of protecting our community, there is a need to deter petitioners from filing false applications for protective orders by clearly informing them of the legal penalties for doing so. There must also be a clear remedy available to respondents against whom false accusations are made, that allows them to recover in the same family court protective order case reasonable attorneys' fees and costs incurred in the course of defending against the false accusations, without having to expend even more time, effort, and money to file a separate civil action to recoup those expenses.

The purpose of this Act is to:

(1) Put persons who petition for family court protective orders on clear notice as to what constitutes "perjury" when signing a petition for an order for protection, by requiring that family court forms contain certain language specifying what "perjury" means and the criminal penalties that can be imposed if convicted of that offense; and

(2) Provide a clear remedy to respondents against whom false accusations are made in family court petitions for an order for protection, by authorizing the family court to award, in the same case, reasonable attorneys' fees and costs incurred in the course of defending the false accusations, without the respondent having to file a separate civil action to recoup those expenses.

SECTION 2. Section 586-3, Hawaii Revised Statutes, is amended to read as follows:

"586-3 Order for protection. (a) There shall exist an action known as a petition for an order for protection in cases of domestic abuse.

(b) A petition for relief under this chapter may be made by:

(1) Any family or household member on the member's own behalf or on behalf of a family or household member who is a minor or who is an incapacitated person as defined in section 560:5-102 or who is physically unable to go to the appropriate place to complete or file the petition; or

(2) Any state agency on behalf of a person who is a minor or who is an incapacitated person as defined in section 560:5-102 or a person who is physically unable to go to the appropriate place to complete or file the petition on behalf of that person.

(c) A petition for relief shall be in writing upon forms provided by the court and shall allege, under penalty of perjury, that: a past act or acts of abuse may have occurred; threats of abuse make it probable that acts of abuse may be imminent; or extreme psychological abuse or malicious property damage is imminent; and be accompanied by an affidavit made under oath or a statement made under penalty of perjury stating the specific facts and circumstances from which relief is sought. Any forms provided by the court that reference perjury shall include a legal definition of perjury, and shall state that perjury is a class C felony punishable by up to five years imprisonment and a $10,000 fine.

(d) The family court shall designate an employee or appropriate nonjudicial agency to assist the person in completing the petition.

(e) In the event the family court subsequently finds that a petitioner for an order for protection made any materially false statement of fact that the petitioner did not believe to be true at the time of signing the petition, then regardless of whether a temporary restraining order or order for protection was ultimately granted in favor of the petitioner, the family court is authorized to award the respondent, in the same court proceeding, reasonable attorneys' fees and costs incurred by the respondent in the course of responding to the false petition."

SECTION 3. Section 586-4, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) The family court judge may issue the ex parte temporary restraining order orally, if the person being restrained is present in court. The order shall state that there is probable cause to believe that a past act or acts of abuse have occurred, or that threats of abuse make it probable that acts of abuse may be imminent, and shall state that the family court is authorized to award the respondent reasonable attorneys' fees and costs incurred by the respondent in the course of responding to the false petition if it subsequently finds that the petitioner made any materially false statement of fact that the petitioner did not believe to be true at the time of signing the petition for an order for protection. The order further shall state that the temporary restraining order is necessary for the purposes of: preventing acts of abuse or preventing a recurrence of actual domestic abuse and ensuring a period of separation of the parties involved. The order shall also describe in reasonable detail the act or acts sought to be restrained. Where necessary, the order may require either or both of the parties involved to leave the premises during the period of the order; may also restrain the party or parties to whom it is directed from contacting, threatening, or physically abusing the applicant's family or household members; and may enjoin or restrain both parties from taking, concealing, removing, threatening, physically abusing, or otherwise disposing of any animal identified to the court as belonging to a household, until further order of the court. The order shall not only be binding upon the parties to the action, but also upon their officers, agents, servants, employees, attorneys, or any other persons in active concert or participation with them. The order shall enjoin the respondent or person to be restrained from performing any combination of the following acts:

(1) Contacting, threatening, or physically abusing the protected party;

(2) Contacting, threatening, or physically abusing any person residing at the protected party's residence;

(3) Entering or visiting the protected party's residence; or

(4) Taking, concealing, removing, threatening, physically abusing, or otherwise disposing of any animal identified to the court as belonging to a household, until further order of the court."

SECTION 4. New statutory material is underscored.

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 6. This Act shall take effect on September 1, 2016.

 

INTRODUCED BY:

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Report Title:

Family Court; Order for Protection; Petitioner

 

Description:

Requires family court forms for protective orders to define "perjury" and specify criminal penalties. Authorizes family court to award respondent reasonable attorneys' fees and costs if court finds petitioner made any materially false statement of fact at the time of signing the petition.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.