Bill Text: HI HB2179 | 2020 | Regular Session | Introduced
Bill Title: Relating To Child Custody.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-27 - Referred to HSH, JUD, referral sheet 5 [HB2179 Detail]
Download: Hawaii-2020-HB2179-Introduced.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
2179 |
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THIRTIETH LEGISLATURE, 2020 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to child custody.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. 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]
Where the parents are unable to agree, and unless the court finds that it is
not in the best interests of the child based upon clear and convincing evidence,
custody should be awarded to [either parent or to] ensure the inclusion
of both parents [according to the best interests] in the raising
of the child[, and the court also may consider frequent, continuing,] and
to ensure maximum continuing physical, emotional, 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;] with both parents;
(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
(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."
SECTION 2. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 3. This Act shall take effect upon its approval.
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INTRODUCED BY: |
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Report Title:
Child Custody; Shared Parenting
Description:
Amends provisions relating to the award of child custody to ensure the maximum inclusion of both parents in the raising of the child, unless not in the child's best interests.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
