H.B. NO.



















     SECTION 1.  Chapter 571, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

     "§571-     Mandatory ongoing training in domestic violence advocacy.  The chief justice of the supreme court shall require all judges and relevant professional personnel of the family courts to complete ongoing training, at intervals of no more than every three years, in the latest best practices and research in domestic violence advocacy designed to improve the ability of the family courts to recognize and respond to cases involving domestic violence and to encourage the family courts to seek out current and valid scientific research on the matter."

     SECTION 2.  Section 571-46, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  In 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 also may consider frequent, continuing, and meaningful contact of each parent with the child unless the court finds that a parent is unwilling or unable to act in the best interest 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 attached to or assisting the court, hereinafter referred to as child custody evaluators, shall make investigations and reports, in consultation with a domestic violence expert or advocate, that 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; and provided further that the court shall define, in accordance with section 571-46.4, the requirements to be a court-appointed child custody evaluator, the standards of practice, ethics, policies, and procedures required of court-appointed child custody evaluators in the performance of their duties for all courts, and the powers of the courts over child custody evaluators to effectuate the best interests of a child in a contested custody dispute pursuant to this section.  Where there is no child custody evaluator available that meets the requirements and standards, or any child custody evaluator to serve indigent parties, the court may appoint a person otherwise willing and available in accordance with section 571-46.4;

     (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 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[,] or visitation by a parent, if the case involves allegations or a history of family violence, the court shall first hold an evidentiary hearing that shall be limited to evidence related to the issue of family violence.  Upon a determination by the court that family violence has been committed by a parent [raises]:

         (A)  There shall be 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[.]; and

         (B)  In addition to other factors that [a] the court shall consider in [a] the 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)] (i)  The court shall consider as the primary factor the [safety and well-being] health of the child and of the parent who is the victim of family violence;

          [(B)] (ii)  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]; or a pattern of coercive and controlling tactics likely to cause fear and stress to the victim or the child;

          [(C)] (iii)  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; and

              (iv)  A parent's allegation of family violence, if made in good faith, 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 has 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 and accountability 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;

    (14)  A supervised visitation center shall 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;

    (15)  The court may include in visitation awarded pursuant to this section visitation by electronic communication provided that the court shall additionally consider the potential for abuse or misuse of the electronic communication, including the equipment used for the communication, by the person seeking visitation or by persons who may be present during the visitation or have access to the communication or equipment; whether the person seeking visitation has previously violated a temporary restraining order or protective order; and whether adequate provision can be made for the physical safety and psychological well-being of the child and for the safety of the custodial parent;

    (16)  The court may set conditions for visitation by electronic communication under paragraph (15), including visitation supervised by another person or occurring in a protected setting.  Visitation by electronic communication shall not be used to:

         (A)  Replace or substitute an award of custody or physical visitation except where:

              (i)  Circumstances exist that make a parent seeking visitation unable to participate in physical visitation, including military deployment; or

             (ii)  Physical visitation may subject the child to physical or extreme psychological harm; or

         (B)  Justify or support the relocation of a custodial parent; and

    (17)  Notwithstanding any provision to the contrary, no natural parent shall be granted custody of or visitation with a child if the natural parent has been convicted in a court of competent jurisdiction in any state of rape or sexual assault and the child was conceived as a result of that offense; provided that:

         (A)  A denial of custody or visitation under this paragraph shall not affect the obligation of the convicted natural parent to support the child;

         (B)  The court may order the convicted natural parent to pay child support;

         (C)  This paragraph shall not apply if subsequent to the date of conviction, the convicted natural parent and custodial natural parent voluntarily cohabitate and establish a mutual custodial environment for the child; and

         (D)  A custodial natural parent may petition the court to grant the convicted natural parent custody and visitation denied pursuant to this paragraph, and upon such petition the court may grant custody and visitation to the convicted natural parent where it is in the best interest of the child."

     SECTION 3.  Section 571-46.4, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§571-46.4[]]  Child custody evaluators; qualification; registry; complaints.  (a)  [A] Subject to subsection (c), a person may be appointed as a child custody evaluator for purposes of section 571-46 if the person is actively licensed as a:

     (1)  Physician under chapter 453 and is a board certified psychiatrist or has completed a residency in psychiatry;

     (2)  Psychologist under chapter 465;

     (3)  Marriage and family therapist under chapter 451J; or

     (4)  Clinical social worker under section 467E-7(3).

     (b)  [A] Subject to subsection (c), a person may be appointed as a child custody evaluator in the absence of a license under subsection (a) if:

     (1)  The individual has obtained education and training that meet nationally recognized competencies and standards of practice in child custody evaluation; provided that there are no child custody evaluators enumerated under subsection (a) who are willing and available, within a reasonable period of time, to perform child custody evaluations; or

     (2)  The parties stipulate to a person who does not qualify as a child custody evaluator under subsection (a) and the court approves that person as a fact-finding investigator to the court.

     (c)  Notwithstanding subsections (a) and (b), in every proceeding under section 571-46 involving an allegation or a history of family violence, the appointment of a child custody evaluator pursuant to section 571-46(a)(4) shall be made in accordance with the following requirements:

     (1)  The person appointed shall have the specific knowledge and training necessary to recognize and respond effectively to cases of family violence, based on nationally recognized competencies and standards of practice;

     (2)  If the proceeding involves an allegation or a history of sexual abuse of the child, the person appointed shall have specific training and experience in the subject of sexually abused minors that includes the employment of practices designed to avoid discouragement of a child's disclosure of sexual abuse;

     (3)  If the court determines that the proceeding involves no issue of mental health, a person shall not be disqualified from appointment solely because the person does not hold an academic degree in mental health; and

     (4)  If the court has reason to believe that a party to the proceeding suffers from a mental health issue, the person appointed shall possess relevant qualifications in mental health evaluation, as determined by the court.

     [(c)] (d)  The judiciary shall maintain on its website a publicly accessible registry of child custody evaluators who are qualified pursuant to this section.  Professionals who are willing and available to perform child custody evaluations shall be responsible for providing the judiciary with relevant information, including contact information, evidence of qualifications, and fees.

     [(d)] (e)  The judiciary shall establish a referral process to allow parties to file a complaint with the judiciary regarding a court-appointed child custody evaluator.  Upon notification by a party of the party's intent to file a complaint against a child custody evaluator appointed under subsection (a), the judiciary may refer the complainant to the appropriate licensing authority.  The judiciary shall submit to the legislature an annual report regarding the number of complaints against court-appointed child custody evaluators that are processed through the referral process.

     [(e)] (f)  A complaint against a court-appointed child custody evaluator not qualified under subsection (a) may be resolved through civil litigation."

     SECTION 4.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

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

     SECTION 6.  This Act shall take effect ninety days after its approval.








Report Title:

Family Courts; Child Custody and Visitation; Domestic Violence; Child Abuse



In child custody and visitation proceedings involving an allegation or history of family violence:  (1) requires family courts to first hold an evidentiary hearing on the issue of family violence; (2) requires child custody evaluators to have qualifications relevant to the subject of family violence; and (3) if the proceeding does not involve mental health issues, prohibits disqualification of a person for appointment as a child custody evaluator solely because the person does not hold a degree relating to mental health.  Prohibits use of a parent's good faith allegation of family violence as a factor that weighs against the parent in determining child custody or visitation.  Requires family court judges and professional personnel to complete ongoing training in the latest best practices and research in domestic violence advocacy.




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