THE SENATE

S.B. NO.

823

THIRTY-FIRST LEGISLATURE, 2021

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to chilDhood sexual abuse.

 

 

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

 


SECTION 1. The legislature finds that the child welfare system requires ongoing reform to uphold the best interests of children who have been seriously abused by one or both custodial parents. The legislature has identified two significant areas for policy changes that lie within the purview of legislators for the safety of children statewide:

(1) Allowing the consideration of harm to comport with the threshold of harm in other states that have addressed the problem of child safety; and

(2) Prohibiting the use of parental alienation syndrome in determining child safety or custodial issues when child sexual abuse or domestic violence by the offending parent or custodian has been reported.

The legislature further finds the State is only allowed to intervene in abuse cases to keep children safe if there is imminent harm to a child. Many abusers commonly avoid this situation by stopping their child abuse temporarily during investigations, only to continue the abuse after they have been awarded custody of the child. Other states have addressed this issue by expanding the scenarios wherein the State may intervene to protect children.

The legislature further finds that parental alienation syndrome has been widely discredited by the mental-health and legal communities. According to several studies on the phenomenon, including a study from the University of Michigan school of law and the former president of the American Psychiatric Association, parental alienation syndrome is "junk science" that fails the standard for evidentiary admissibility.

In addition, a call for nationwide reform was urged, resulting from a 2020 longitudinal study--funded by the United States Department of Justice--which also confirmed that parental alienation syndrome lacked any scientific basis and courts' consideration of parental alienation syndrome disproportionately affected mothers reporting child abuse or child sexual abuse of their children by their children's fathers. The result was that mothers lost custody of their children through the fathers' retaliatory-yet-successful counter-arguments in support of parental alienation syndrome. Essentially, this common, widespread phenomenon exemplifies systemic bias at its worst, demonstrating the tacit rule that mothers should not report child sexual abuse for fear of losing custody of their children through the sexist application of the junk science of parental alienation syndrome.

Although fathers'-rights organizations may argue in favor of the validity of parental alienation syndrome, no organization thus far has put forth a valid scientific study refuting the findings of the numerous scientific and legal studies calling for the abolition of the consideration of parental alienation syndrome in determining child custody.

Furthermore, the legislature finds that the founder of the concept of parental alienation syndrome developed his theory without using any empirical evidence. However, because of a longstanding problem with systemic sexism in the courts, his scientifically baseless theory flourished to the detriment of protective mothers.

The purpose of this Act is to:

(1) Prohibit courts from considering the allegation of parental alienation syndrome in determining child custody where sexual abuse or domestic violence has been reported; and

(2) Allow for the consideration of "harm" and "probable harm", rather than just "imminent harm", in Child Protective Act determinations.

SECTION 2. Section 571-46, Hawaii Revised Statutes, is amended to read as follows:

"571-46 Criteria and procedure in awarding custody and visitation; best interest of the child. (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 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 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, 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 shall 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 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 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 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.

(b) In determining what constitutes the best interest of the child under this section, the court shall consider, but not be limited to, the following:

(1) Any history of sexual or physical abuse of a child by a parent;

(2) Any history of neglect or emotional abuse of a child by a parent;

(3) The overall quality of the parent-child relationship;

(4) The history of caregiving or parenting by each parent prior and subsequent to a marital or other type of separation;

(5) Each parent's cooperation in developing and implementing a plan to meet the child's ongoing needs, interests, and schedule; provided that this factor shall not be considered in any case where the court has determined that family violence has been committed by a parent;

(6) The physical health needs of the child;

(7) The emotional needs of the child;

(8) The safety needs of the child;

(9) The educational needs of the child;

(10) The child's need for relationships with siblings;

(11) Each parent's actions demonstrating that they allow the child to maintain family connections through family events and activities; provided that this factor shall not be considered in any case where the court has determined that family violence has been committed by a parent;

(12) Each parent's actions demonstrating that they separate the child's needs from the parent's needs;

(13) Any evidence of past or current drug or alcohol abuse by a parent;

(14) The mental health of each parent;

(15) The areas and levels of conflict present within the family; and

(16) A parent's prior wilful misuse of the protection from abuse process under chapter 586 to gain a tactical advantage in any proceeding involving the custody determination of a minor. Such wilful misuse may be considered only if it is established by clear and convincing evidence, and if it is further found by clear and convincing evidence that in the particular family circumstance the wilful misuse tends to show that, in the future, the parent who engaged in the wilful misuse will not be able to cooperate successfully with the other parent in their shared responsibilities for the child. The court shall articulate findings of fact whenever relying upon this factor as part of its determination of the best interests of the child. For the purposes of this section, when taken alone, the voluntary dismissal of a petition for protection from abuse shall not be treated as prima facie evidence that a wilful misuse of the protection from abuse process has occurred.

(c) In no case shall the court consider parental alienation syndrome as a defense where sexual assault or abuse of a family or household member, or any threat thereof, has been reported when making its determination under subsection (b)(1). As used in this section, "parental alienation syndrome" means the widely discredited idea that one parent may interfere with the love that the child may have for the other parent by preventing, or attempting to prevent, the child from maintaining an ongoing relationship with the other parent during or after a separation or divorce."

SECTION 3. Section 587A-4, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Probable harm" means that without intervention there is reasonable cause to believe that harm to the child is more likely than not to occur."

SECTION 4. Section 587A-5, Hawaii Revised Statutes, is amended to read as follows:

"587A-5 Jurisdiction. Pursuant to section 571‑11(9), the court shall have exclusive original jurisdiction:

(1) In a child protective proceeding concerning any child who is or was found within the State at the time specified facts and circumstances occurred, are discovered, or are reported to the department. These facts and circumstances constitute the basis for the court's finding that the child's physical or psychological health or welfare is subject to harm or imminent harm, has been harmed, may suffer probable harm, or is subject to threatened harm by the acts or omissions of the child's family; and

(2) In any prior child protective proceeding under chapter 587, the former Child Protective Act."

SECTION 5. Section 587A-8, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A police officer shall assume protective custody of a child without a court order and without the consent of the child's family, if in the discretion of the police officer, the officer determines that:

(1) The child is subject to harm or imminent harm while in the custody of the child's family;

(2) The child's parent has subjected, or may subject, the child to probable harm;

[(2)] (3) The child has no parent, as defined in this chapter, who is willing and able to provide a safe family home for the child;

[(3)] (4) The child has no caregiver, as defined in this chapter, who is willing and able to provide a safe and appropriate placement for the child; or

[(4)] (5) The child's parent has subjected the child to harm or threatened harm and the parent is likely to flee with the child."

SECTION 6. Section 587A-9, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) When the department receives protective custody of a child from the police, the department shall:

(1) Assume temporary foster custody of the child if, in the discretion of the department, the department determines that the child is subject to harm or imminent harm while in the custody of the child's family;

(2) Assume temporary foster custody of the child if, in the discretion of the department, the child's parent has subjected, or may subject, the child to probable harm;

[(2)] (3) Make every reasonable effort to inform the child's parents of the actions taken, unless doing so would put another person at risk of harm;

[(3)] (4) Unless the child is admitted to a hospital or similar institution, place the child in emergency foster care while the department conducts an appropriate investigation, with placement preference being given to an approved relative;

[(4)] (5) With authorized agencies, make reasonable efforts to identify and notify all relatives within thirty days of assuming temporary foster custody of the child; and

[(5)] (6) Within three days, excluding Saturdays, Sundays, and holidays:

(A) Relinquish temporary foster custody, return the child to the child's parents, and proceed pursuant to section 587A-11(4), (5), or (6);

(B) Secure a voluntary placement agreement from the child's parents to place the child in foster care, and proceed pursuant to section 587A-11(6) or (8); or

(C) File a petition with the court."

SECTION 7. Section 587A-11, Hawaii Revised Statutes, is amended to read as follows:

"587A-11 Investigation; department powers. Upon receiving a report that a child is subject to harm or imminent harm, has been harmed, may suffer probable harm, or is subject to threatened harm, and when an assessment is required by this chapter, the department shall cause such investigation to be made as it deems to be appropriate. In conducting the investigation, the department may:

(1) Enlist the cooperation and assistance of appropriate state and federal law enforcement authorities, who may conduct an investigation and, if an investigation is conducted, shall provide the department with all preliminary findings, including the results of a criminal history record check of an alleged perpetrator of harm or threatened harm to the child;

(2) Conduct a criminal history record check of an alleged perpetrator and all adults living in the family home, with or without consent, to ensure the safety of the child;

(3) Interview the child without the presence or prior approval of the child's family and temporarily assume protective custody of the child for the purpose of conducting the interview;

(4) Resolve the matter in an informal fashion that it deems appropriate under the circumstances;

(5) Close the matter if the department finds, after an assessment, that the child is residing with a caregiver who is willing and able to meet the child's needs and provide a safe and appropriate placement for the child;

(6) Immediately enter into a service plan:

(A) To safely maintain the child in the family home; or

(B) To place the child in voluntary foster care pursuant to a written agreement with the child's parent.

If the child is placed in voluntary foster care and the family does not successfully complete the service plan within three months after the date on which the department assumed physical custody of the child, the department shall file a petition. The department is not required to file a petition if the parents agree to adoption or legal guardianship of the child and the child's safety is ensured; provided that the adoption or legal guardianship hearing is conducted within six months of the date on which the department assumed physical custody of the child;

(7) Assume temporary foster custody of the child and file a petition with the court within three days, excluding Saturdays, Sundays, and holidays, after the date on which the department assumes temporary foster custody of the child, with placement preference being given to an approved relative; or

(8) File a petition or ensure that a petition is filed by another appropriate authorized agency in court under this chapter."

SECTION 8. Section 587A-12, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) If the court determines that the child is subject to harm, probable harm, or imminent harm while in the custody of the child's family, the court shall order that a police officer immediately take the child into protective custody and that the department immediately assume temporary foster custody of the child."

SECTION 9. Section 587A-21, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) In deciding in temporary foster custody hearings whether there is reasonable cause to believe that a child is subject to harm, probable harm, or imminent harm the court may consider relevant hearsay evidence when direct testimony is unavailable or when it is impractical to subpoena witnesses who will be able to testify to facts based on personal knowledge."

SECTION 10. Section 587A-26, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) After reviewing the petition and any reports submitted by the department and considering all information pertaining to the safe family home factors, the court shall order:

(1) That the child be immediately released from the department's temporary foster custody, placed in temporary family supervision, and returned to the child's family home with the assistance of services, upon finding that the child's family is able to provide a safe family home with services; or

(2) That the child continue in the department's temporary foster custody, upon finding that there is reasonable cause to believe that continued placement in foster care is necessary to protect the child from harm, probable harm, or imminent harm; provided that in making this determination, the court shall consider whether:

(A) The department made reasonable efforts to prevent or eliminate the need for removing the child from the child's family home before the child was placed in foster care;

(B) The alleged or potential perpetrator of imminent harm, harm, or threatened harm should be removed from the family home rather than continuing the child's placement in foster care. The child's family shall have the burden of establishing that it is in the child's best interests to remove the child, rather than the alleged or potential perpetrator, from the family home; and

(C) Every reasonable effort has been or is being made to place siblings or psychologically-bonded children together, unless such placement is not in the children's best interests."

SECTION 11. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 12. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 13. This Act shall take effect upon its approval.

 

INTRODUCED BY:

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Report Title:

Child Welfare; Custody; Visitation; Parental Alienation Syndrome; Child Protective Act; Harm; Probable Harm

 

Description:

Prohibits courts from considering parental alienation syndrome in determining child custody. Allows for the consideration of "harm" and "probable harm", rather than just "imminent harm", in Child Protective Act determinations.

 

 

 

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