Bill Text: HI SB721 | 2024 | Regular Session | Introduced
Bill Title: Relating To Parental Parity.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2023-12-11 - Carried over to 2024 Regular Session. [SB721 Detail]
Download: Hawaii-2024-SB721-Introduced.html
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THE SENATE |
S.B. NO. |
721 |
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THIRTY-SECOND LEGISLATURE, 2023 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
Relating to Parental Parity.
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[:] in the best interests of the child:
(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] shall consider frequent, continuing, and meaningful
contact of [each parent with] the child with each parent unless
the court finds that [a parent is] one or both parents are unable
to act in the best interest of the child;
(2) Custody may be awarded to persons other than
the [father or mother] parents 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) If the court determines that, upon clear
and convincing evidence, physical custody should not be awarded equally to both
parents, the court shall set forth the determining evidence in the written custody
order; provided that no person shall add to, modify, nor exclude the documented
evidence from the written order;
[(6)] (7)
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)] (8)
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)] (9)
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)] (10)
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)] (11)
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)] (12)
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)] (13)
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)] (14)
If a court allows a family or household member to supervise visitation,
the court shall establish conditions to be followed during visitation;
[(14)] (15)
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)] (16)
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)] (17)
The court may set conditions for visitation by electronic
communication under paragraph [(15),] (16), 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)] (18)
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. Section 580-47, Hawaii Revised Statutes, is amended to read as follows:
"§580-47 Support orders; division of property. (a)
Upon granting a divorce, or thereafter if, in addition to the powers
granted in subsections [(c)] (d) and [(d),] (e),
jurisdiction of those matters is reserved under the decree by agreement of both
parties or by order of court after finding that good cause exists, the court
may make any further orders as shall appear just and equitable (1) compelling
the parties or either of them to provide for the support, maintenance, and
education of the children of the parties; (2) compelling either party to provide
for the support and maintenance of the other party; (3) finally dividing and
distributing the estate of the parties, real, personal, or mixed, whether
community, joint, or separate; and (4) allocating, as between the parties, the
responsibility for the payment of the debts of the parties whether community,
joint, or separate, and the attorney's fees, costs, and expenses incurred by
each party by reason of the divorce. In
making these further orders, the court shall take into consideration: the respective merits of the parties, the
relative abilities of the parties, the condition in which each party will be
left by the divorce, the burdens imposed upon either party for the benefit of
the children of the parties, the concealment of or failure to disclose income
or an asset, or violation of a restraining order issued under section 580-10(a)
or (b), if any, by either party, and all other circumstances of the case. In establishing the amounts of child support,
the court shall use the guidelines established under section 576D-7. Provision may be made for the support,
maintenance, and education of an adult or minor child and for the support,
maintenance, and education of an incompetent adult child whether or not the
petition is made before or after the child has attained the age of majority. In those cases where child support payments
are to continue due to the adult child's pursuance of education, the agency,
three months prior to the adult child's nineteenth birthday, shall send notice
by regular mail to the adult child and the custodial parent that prospective
child support will be suspended unless proof is provided by the custodial
parent or adult child to the child support enforcement agency, prior to the
child's nineteenth birthday, that the child is presently enrolled as a full-time
student in school or has been accepted into and plans to attend as a full-time
student for the next semester a post-high school university, college, or
vocational school. If the custodial
parent or adult child fails to do so, prospective child support payments may be
automatically suspended by the child support enforcement agency, hearings
officer, or court upon the child reaching the age of nineteen years. In addition, if applicable, the agency,
hearings officer, or court may issue an order terminating existing assignments
against the responsible parent's income and income assignment orders.
In addition to any other relevant factors considered, the court, in ordering spousal support and maintenance, shall consider the following factors:
(1) Financial resources of the parties;
(2) Ability of the party seeking support and maintenance to meet his or her needs independently;
(3) Duration of the marriage;
(4) Standard of living established during the marriage;
(5) Age of the parties;
(6) Physical and emotional condition of the parties;
(7) Usual occupation of the parties during the marriage;
(8) Vocational skills and employability of the party seeking support and maintenance;
(9) Needs of the parties;
(10) Custodial
and child support responsibilities;
(11) Ability of the party from whom support and maintenance is sought to meet his or her own needs while meeting the needs of the party seeking support and maintenance;
(12) Other
factors which measure the financial condition in which the parties will be left
as the result of the action under which the determination of maintenance is
made; [and]
(13) Probable
duration of the need of the party seeking support and maintenance[.];
(14) Any necessary reduction in
employment due to the needs of a dependent child of the marriage or the
circumstances of the marriage; and
(15) Wasting of assets by a parent.
The court may order support and maintenance to a party for an indefinite period or until further order of the court; provided that in the event the court determines that support and maintenance shall be ordered for a specific duration wholly or partly based on competent evidence as to the amount of time which will be required for the party seeking support and maintenance to secure adequate training, education, skills, or other qualifications necessary to qualify for appropriate employment, whether intended to qualify the party for a new occupation, update or expand existing qualification, or otherwise enable or enhance the employability of the party, the court shall order support and maintenance for a period sufficient to allow completion of the training, education, skills, or other activity, and shall allow, in addition, sufficient time for the party to secure appropriate employment.
(b)
Any value given for a joint investment or asset is presumed to be a
joint gift. This subsection shall not
apply to inheritance assets.
[(b)] (c) An order as to the custody, management, and
division of property and as to the payment of debts and the attorney's fees,
costs and expenses incurred in the divorce shall be final and conclusive as to
both parties subject only to appeal as in civil cases. The court shall at all times, including
during the pendency of any appeal, have the power to grant any and all orders
that may be necessary to protect and provide for the support and maintenance of
the parties and any children of the parties to secure justice, to compel either
party to advance reasonable amounts for the expenses of the appeal including
attorney's fees to be incurred by the other party, and to amend and revise such
orders from time to time.
[(c)] (d) No order entered under the authority of
subsection (a) or entered thereafter revising so much of such an order as
provides for the support, maintenance, and education of the children of the
parties shall impair the power of the court from time to time to revise its
orders providing for the support, maintenance, and education of the children of
the parties upon a showing of a change in the circumstances of either party or
any child of the parties since the entry of any prior order relating to the
support, maintenance, and education. The
establishment of the guidelines or the adoption of any modifications made to
the guidelines set forth in section 576D-7 may constitute a change in
circumstances sufficient to permit review of the support order. A material change of circumstances will be
presumed if support as calculated pursuant to the guidelines is either ten per
cent greater or less than the support amount in the outstanding support
order. The need to provide for the child's
health care needs through health insurance or other means shall be a basis for
petitioning for a modification of the support order. The most current guidelines shall be used to
calculate the amount of the child support obligation.
[(d)] (e) Upon the motion of either party supported by
an affidavit setting forth in particular a material change in the physical or
financial circumstances of either party, or upon a showing of other good cause,
the moving party, in the discretion of the court, and upon adequate notice to
the other party, may be granted a hearing.
The fact that the moving party is in default or arrears in the
performance of any act or payment of any sums theretofore ordered to be done or
paid by the party shall not necessarily constitute a bar to the granting of the
hearing. The court, upon such hearing,
for good cause shown may amend or revise any order and shall consider all
proper circumstances in determining the amount of the allowance, if any, which
shall thereafter be ordered.
[(e)] (f) The responsible parent or the custodial
parent shall have a right to petition the family court or the child support
enforcement agency not more than once every three years for review and
adjustment of the child support order without having to show a change in
circumstances. The responsible or
custodial parent shall not be precluded from petitioning the family court or
the child support enforcement agency for review and adjustment more than once
in any three-year period if the second or subsequent request is supported by
proof of a substantial or material change of circumstances.
[(f)] (g) Attorney's fees and costs. The court hearing any motion for orders either
revising an order for the custody, support, maintenance, and education of the
children of the parties, or an order for the support and maintenance of one
party by the other, or a motion for an order to enforce any such order or any
order made under subsection (a) of this section, may make such orders requiring
either party to pay or contribute to the payment of the attorney's fees, costs,
and expenses of the other party relating to such motion and hearing as shall
appear just and equitable after consideration of the respective merits of the
parties, the relative abilities of the parties, the economic condition of each
party at the time of the hearing, the burdens imposed upon either party for the
benefit of the children of the parties, the concealment of or failure to
disclose income or an asset, or violation of a restraining order issued under
section 580-10(a) or (b), if any, by either party, and all other circumstances
of the case."
SECTION 3. Section 580-74, Hawaii Revised Statutes, is amended to read as follows:
"§580-74 Support of spouse and
children. Upon decreeing a
separation, the court may make [such] further decree for the support and
maintenance of either spouse and for the support, maintenance, and education of
minor children, by either spouse, or out of the property of either spouse, as
may appear just and proper; provided that the court shall apply the
considerations required by section 580-47(a) in formulation of any support
decree in any action under this part; and provided further that the court may
amend or revise any [such] decree in the same manner and under the same
circumstances as provided for by section [580-47(d).] 580-47(e)."
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. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 7. This Act shall take effect upon its approval.
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INTRODUCED BY: |
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Report Title:
Minors; Child Custody; Best Interests of the Child; Spousal Support Orders
Description:
Requires the court to consider frequent, continuing, and meaningful contact with each parent when awarding custody of a minor child, unless the court finds that one or both parents are unable to act in the best interests of the child, and to make certain findings in the custody order. Requires the court to consider any necessary reduction in employment due to the needs of a dependent child and wasting of assets when ordering spousal support and maintenance. Establishes that in the division and distribution of property as a result of a divorce, any value given for a joint investment or asset is presumed to be a joint gift except for inheritance assets.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
