HOUSE OF REPRESENTATIVES
THIRTIETH LEGISLATURE, 2020
STATE OF HAWAII
A BILL FOR AN ACT
relating to the family court.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the delays experienced by parents and children while awaiting the disposition of appeals from family court decisions arguably violate the due process clauses of both the state and federal constitutions. Indeed, delays conflict with the stated mission of the family court "to provide a fair, speedy, economical, and accessible forum for the resolution of matters involving families and children."
The legislature further finds that, in recent years, parents and children have had to wait as long as five years for the resolution of cases involving life-altering matters such as custody determinations. The uncertainty created by long delays harms families and needlessly prolongs an already stressful and traumatic experience. A recent Hawaii Supreme Court decision, W.N. v. S.M., SCAP 17-0000539, 2018 WL 3617874 (2018), serves to illustrate the potential harm that can be inflicted during a child's formative years. The child was five years old when the original family court petition was filed in 2014. The family court's decision was appealed not once but twice. The Hawaii Supreme Court's decision remanded the case yet again to the family court for another evidentiary hearing. If the results of the family court decision are once again appealed, the case may linger for another two years, potentially until 2020 or 2021. By this time, the child could be eleven or twelve years old. If the family court ultimately finds that the child's best interest requires placement with the present non-custodial parent who sued for custody in 2014, the child will have been with the "wrong" parent for six or seven years, a significant period of time in a child's life that cannot be recouped.
Moreover, the case discussed above is no exception. Other cases that have undergone the appeals process show that delays have lasted as long as:
(1) Four years and eleven months between the filing of the family court order and the decision by the supreme court in Brutsch v. Brutsch, 139 Hawaii 373 (2017);
(2) Four years in Cox v. Cox, 138 Hawaii 476 (2016); and
(3) Two years and six months in Tumaneng v. Tumaneng, 138 Hawaii 468 (2016).
Delays can result in unacceptable incongruities if the matter to be decided becomes moot while the appeal is pending, such as when a child reaches the age of majority before the child custody decision is finally made.
Therefore, the purpose of this Act is to:
(1) Expedite the appeals from family court orders by making the orders appealable directly to the supreme court instead of the intermediate court of appeals;
(2) Require the supreme court to render a final decision on appeals from family court orders within one hundred eighty days; and
(3) Encourage a reduction in the number of remands to the family court.
SECTION 2. Section 571-54, Hawaii Revised Statutes, is amended to read as follows:
Appeal. (a) An interested party, aggrieved by any order
or decree of the court, may appeal to the [
intermediate appellate] supreme
court for review of questions of law and fact upon the same terms and
conditions as in other cases in the circuit court, and review shall be governed
by chapter 602, except as hereinafter provided.
Where the decree or order affects the custody of a child or minor, the
appeal shall be heard at the earliest practicable time. In cases under section 571-11, the record on
appeal shall be given a fictitious title, to safeguard against publication of
the names of the children or minors involved.
(b) The stay of enforcement of an order or
decree, or the pendency of an appeal, shall not suspend the order or decree of
the court regarding a child or minor, or discharge the child or minor from the
custody of the court or of the person, institution, or agency to whose care the
child or minor has been committed, unless otherwise ordered by the family court
or by the [
appellate] supreme court after an appeal is
taken. Pending final disposition of the
case, the family court or the [ appellate] supreme court, after
the appeal is taken, may make [ such] an order for temporary
custody as is appropriate in the circumstances.
If the [ appellate] supreme court does not dismiss the
proceedings and discharge the child or minor, it shall affirm or modify the
order of the family court within one hundred eighty days of its receipt of
the appeal and remand the child or minor to the jurisdiction of the family
court for disposition not inconsistent with the [ appellate] supreme
court's finding on the appeal[ .]; provided that the supreme court
shall endeavor to finally resolve any family court order appeal involving a child
or minor and shall only exercise its remand power as sparingly as possible.
(c) An order or decree entered in a proceeding based upon section 571-11(1), (2), or (6) shall be subject to appeal only as follows:
twenty days from the date of the entry of any such order or decree, any party
directly affected thereby may file a motion for a reconsideration of the facts
involved. The motion and any supporting
affidavit shall set forth the grounds on which a reconsideration is requested
and shall be sworn to by the movant or the movant's representative. The judge shall hold a hearing on the motion,
affording to all parties concerned the full right of representation by counsel
and presentation of relevant evidence.
The findings of the judge upon the hearing of the motion and the judge's
determination and disposition of the case thereafter, and any decision,
judgment, order, or decree affecting the child and entered as a result of the
hearing on the motion, shall be set forth in writing and signed by the
judge. Any party aggrieved by [
such] the findings, judgment, order, or decree shall have the right
to appeal therefrom to the [ intermediate appellate] supreme
court, upon the same terms and conditions as in other cases in the circuit
court, and review shall be governed by chapter 602; provided that no [ such]
motion for reconsideration shall operate as a stay of [ any such] the
findings, judgment, order, or decree unless the judge of the family court so
orders; and provided further that no informality or technical irregularity in
the proceedings prior to the hearing on the motion for reconsideration shall
constitute grounds for the reversal of [ any such] the findings,
judgment, order, or decree by the [ appellate] supreme court."
SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 4. This Act shall take effect upon its approval and shall apply to appeals taken on or after the effective date of this Act.
Family Court; Supreme Court; Direct Appeal
Makes decisions of the family court appealable to the supreme court instead of the intermediate court of appeals. Requires the supreme court to render a final decision on appeals from family court orders within 180 days. Encourages a reduction in the number of remands to the family court.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.