SPEC. COM. REP. NO.
Honolulu, Hawaii
S.D. 2
Honorable Robert Bunda
President of the Senate
Twenty-Second State Legislature
State of Hawaii
Sir:
Your Committee on Human Services, acting as a Special Interim Committee, to which was referred S.R. No. 40, S.D. 2, entitled:
REQUESTING THE SENATE COMMITTEE ON HUMAN SERVICES TO CONVENE INTERIM HEARINGS ON THE MISUSE OF LEGAL INTERVENTIONS AVAILABLE TO THE FAMILY COURT,
begs leave to report as follows:
The Senate of the Twenty-Second Legislature, Regular Session of 2004, adopted S.R. No. 40, S.D. 2, in order to address ongoing concerns regarding the misuse of legal interventions available to the Family Court. The measure requested the Committee on Human Services to convene interim hearings to review and address these concerns.
II. SCOPE OF REVIEW
Pursuant to S.R. No. 40, S.D. 2, the Committee's responsibilities were twofold:
(1) To convene interim task force meetings on the misuse of legal interventions available to the Family Court, including the long-term use of interventions such as temporary restraining orders; the selection, use, and accountability of custody guardians ad litem and other personnel; the use of acceptable national standard of care for the best interests of the children and families in Family Court; and other issues that impact the timely and fair resolution of cases; and
(2) To submit a report of its findings and recommendations for legislative action to resolve the identified issues no later than twenty days prior to the Regular Session of 2005.
III. APPROACH
The Committee held a public task force meeting on August 19, 2004. At that hearing, testimony was presented and received from the Children's Rights Council of Hawaii and ten individuals. Based on the scope of the Committee's responsibilities and the testimony received at the hearing, your Committee identified four main areas of concern for review:
(1) Standards relating to "joint custody" and "best interests of the child";
(2) Accountability of Family Courts in using interventions such as temporary restraining orders (TROs) and protective orders (POs);
(3) Cost-effectiveness and increased accountability of guardians ad litem (GALs) and other providers (e.g. custody evaluators); and
(4) Mandatory mediations (alternative dispute resolution) for all Family Court proceedings.
A follow-up task force meeting was held on September 23, 2004. Prior to this hearing, invitations were sent to various state departments, public interest groups, family law attorneys, retired judges, and private individuals. The task force approach was designed to be open and inclusive. Task force meetings and briefings were open to the public and televised over Capitol Television. Anyone with an interest or concern was allowed to participate, and if they chose, were included. Additionally, members were added to the task force as meetings took place. A listing of task force attendees, resource people, and other participants is attached as Appendix A.
At this hearing, attendees were asked to participate in one or more of the four task force groups (joint custody, temporary restraining and protective orders, standards for guardians ad litem, and alternative dispute resolution). Each group was instructed to meet, confer, and present findings and recommendations for its topic at a follow-up task force meeting on October 28, 2004.
At the September 23, 2004 meeting, numerous questions were raised regarding the Family Court's procedures and policies. However, there was no representative from the Judiciary present at the hearing. In an earlier conversation with your Committee Chair, Supreme Court Chief Justice Ronald Moon indicated that no representative from the Judiciary would be present at the September 23, 2004 hearing because any discussion between the Legislature and the Judiciary regarding policy decisions enforced by the Judiciary could create a potential separation of powers problem.
Thus your Committee suggested having a follow-up briefing with a representative from the Judiciary to address some of the procedural questions to aid each of the four task force groups with their work. Written questions were submitted to the Judiciary prior to the briefing. An informational briefing was held on October 11, 2004. At that briefing, Senior Family Court Judge Frances Wong presented a PowerPoint presentation entitled "Private Custody Disputes -- Making a Good Family Court System Better" and answered questions from representatives from each of the four task-force groups. Judge Wong's PowerPoint presentation and a summary of her presentation are included as Appendix B.
On October 28, 2004, a final task force meeting was held. At that hearing, each of the four task force groups presented their findings and recommendations for legislative action to resolve their identified issues.
IV. REVIEW AND ASSESSMENT OF CURRENT STATUTES
There are four main topics covered by your Committee. The main topics are as follows:
(1) Standards relating to "joint custody" and "best interests of the child";
(2) Accountability of Family Courts in using interventions such as temporary restraining orders (TROs) and protective orders (POs);
(3) Cost-effectiveness and accountability of guardians ad litem (GALs) and other providers (e.g. custody evaluators); and
(4) Mandatory mediations (alternative dispute resolution) for all Family Court proceedings.
There are specific Hawaii statutes that address each area. Each of the following sections describes the current statutory background for each topic and contains a general discussion of issues that were raised during the August 19, 2004 hearing.
Joint Custody
Review of Statutes
Joint custody is a legal concept that not only allows each parent to have an equal voice in making decisions relating to their children's well being, but also recognizes the advantages of shared responsibility in raising children. See 24A Am.Jur.2d Divorce and Separation §940 (1998). Typically, an award of joint custody is proper where the arrangement is in the best interest of the child and both parents are fit and proper persons to be awarded custody. Id.
States have statutorily defined the term "joint custody." Under Hawaii law, "joint custody" refers to "an order awarding legal custody of the minor child or children to both parents and providing that physical custody shall be shared by the parents in such a way as to assure the child or children of continuing contact with both parents. . . ." Hawaii Revised Statutes (HRS) §571-46.1.
Hawaii has enacted a child custody statute that recognizes joint custody as one of many viable custodial arrangements. Joint custody is statutorily established in HRS §571-46.1. This section establishes the standards, considerations, and procedures that the Hawaii Family Court must apply in determining an award of joint custody.
HRS §571-46.1 permits the awarding of joint custody based upon the motion of a parent. This section reads in relevant part:
(a) Upon the application of either parent, joint custody may be awarded in the discretion of the court. For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court shall, upon the request of either party, direct that an investigation be conducted pursuant to the provisions of section 571-46(4).
Accordingly, under Hawaii law, joint custody is recognized as a viable custodial arrangement if requested by one of the parties. However, there is no statutory language creating an express presumption in favor of this custodial arrangement.
In divorce proceedings, the "best interests of a child" analysis is the proper and feasible criterion for determining which of the two parents will be accorded custody of the child. See 24A Am. Jur2d. Divorce and Separation §931 (1998).
In Hawaii, the best interests of a child analysis is utilized in awarding custody in actions for divorce, separation, annulment, separate maintenance, or any other proceeding where there is a dispute as to the custody of a minor child. See HRS §571-46.
Under Hawaii law, in determining a custody arrangement that is in the best interests of the child, the court is required to take into consideration various statutorily enumerated factors. Some of these factors include: (1) the child's preference; (2) the moral, physical, mental, spiritual well being of the child; (3) evidence of family violence; and (4) the wishes of the child's parents. See HRS §571-46.
Nationally, states have implemented different approaches in determining whether joint custody is the appropriate custodial arrangement for both the child and his or her parents. Some states, such as Connecticut have enacted statutory language that expressly creates a presumption in favor of joint custody. Other state statutes, such as Michigan and Hawaii, recognize joint custody as an option for consideration that may be brought to the court's attention by the parties involved in the divorce action. Summary tables of state joint custody laws are included in Appendix C.
Discussion
At the hearing on August 19, 2004, strong endorsements were made to amend current Hawaii statutes to provide a presumption of joint custody. This view is premised upon the philosophy that the best parent for a child is both parents. According to testimony provided, thirty states and the District of Columbia have enacted a presumption or preference in statute for joint custody. Testimony received by your Committee also highlighted specific state laws deserving of consideration.
Temporary Restraining Orders and Protective Orders
Background Information
Under current Hawaii laws, the process and procedure for obtaining a temporary restraining order (TRO) and protective order (PO) are referenced under Chapter 586, HRS. In 1982, a TRO was effective for 30 days and a PO could be issued for a period as "the court deems appropriate, not to exceed ninety days from the date of its initial order." Subsequent amendments expanded both the type of conduct that may form the basis for granting a TRO or PO as well as the groups of individuals that may not only submit a petition for a TRO or PO, but also avail themselves of the protections of a TRO or PO.
In 1985, a "family or household member" was permitted to apply for an order for protection on behalf of a minor or an incapacitated person. Additionally, the protections of a TRO were expanded to include the applicant's family or household members.
In 1987, two important amendments with respect to POs were enacted. First, a state agency was authorized to file a petition for a PO on behalf of a minor or incapacitated individual when there is no household or family member who can initiate the petition. Second, allegations concerning "extreme psychological abuse" and "malicious property damage" were recognized as grounds upon which a petition for a PO may be granted. A PO was now effective for a period of time "the court deems appropriate, not to exceed one hundred eighty days from the date of the protective order is granted." A TRO was now effective thirty days from the date the order is granted.
The 1992 amendments identified certain acts which a court may enjoin a respondent from committing against a petitioner for the purposes of issuing a TRO, including contacting, threatening, or physically abusing the petitioner as well as any other person residing at the petitioner's residence. Accordingly, a TRO could prohibit telephone calls to the petitioner; entering or visiting the petitioner's residence; and contacting, threatening, or physically abusing the petitioner at work. The 1992 amendments also increased criminal penalties for violations of a TRO as well as extended the TRO period to ninety days from the date the TRO is granted. The 1992 amendments also modified the effective date of the TRO where a TRO, orally granted by the court, may be deemed in effect at that time when the court determines that each party understands the order and its conditions.
In 1997, the PO provisions were amended to remove the requirement that judges consider "recent" acts of domestic violence in determining whether to issue a PO for victims of domestic abuse. This was done to ensure greater uniformity in application of the PO statute among judges as well as provide judges with greater discretion in determining whether there is sufficient evidence to support the need for a PO.
Review of Statutes
Pursuant to statute, to obtain a PO in Hawaii:
(c) A petition for relief shall be in writing upon forms provided by the court and shall allege, under penalty of perjury, that: a past act or acts of abuse may have occurred; threats of abuse make it probable that acts of abuse may be imminent; or extreme psychological abuse or malicious property damage is imminent; and be accompanied by an affidavit made under oath or a statement made under penalty of perjury stating the specific facts and circumstances from which relief is sought.
HRS §586-3(c).
To obtain a TRO, the respondent does not have to be present at the hearing and the petition must show probable cause that one or more acts of abuse have occurred or a threat of abuse make it probable that an act of abuse is imminent. The HRS provisions state that:
[u]pon petition to a family court judge, an ex parte temporary restraining order may be granted without notice to restrain either or both parties from contacting, threatening, or physically abusing each other, notwithstanding that a complaint for annulment, divorce, or separation has not been filed.
HRS §586-4(a).
The order shall state that there is probable cause to believe that a past act or acts of abuse have occurred, or that threats of abuse make it probable that acts of abuse may be imminent. The order further shall state that the temporary restraining order is necessary for the purposes of: preventing acts of abuse or preventing a recurrence of actual domestic abuse; and ensuring a period of separation of the parties involved.
HRS §586-4(c) (emphasis added).
Time limits for TROs are statutorily limited to 90 days. However, POs have no statutory limits and may be extended indefinitely.
(a) A temporary restraining order granted pursuant to this chapter shall remain in effect at the discretion of the court, for a period not to exceed ninety days from the date the order is granted.
HRS §586-5(a).
[T]he court may order that a protective order be issued for a further fixed reasonable period as the court deems appropriate.
. . .
(b) A protective order may be extended for such further fixed reasonable period as the court deems appropriate.
HRS §586-5.5.
Additionally, when a TRO is issued, the respondent is restrained from contacting the petitioner, as well as any person residing at the petitioner's residence. Specifically, the petitioner is restrained from:
HRS §586-4(a).
Nationally, most states have codified similar standards as those present in Hawaii's TRO and PO laws. A summary of a national statutory review is included as Appendix D.
Discussion
At the task force meeting on August 19, 2004, a number of testifiers voiced concerns regarding the prevalence of TROs and POs in their own cases or in those of close friends or family. These oft-repeated complaints focused upon the use of ex parte motions to obtain TROs where one party was not present to contest the allegations as well as allowing these orders to extend indefinitely, often beyond the expiration date. In regard to POs, testifiers echoed similar concerns with respect to the potentially open-ended nature of these orders which could be extended indefinitely at the discretion of a Family Court judge.
At the October 11, 2004 information briefing, Judge Frances Wong did not address many of the written questions submitted to the Judiciary regarding misuse of TROs and false allegations of abuse, saying that these represented 'red herrings.'
Guardians ad Litem and Custody Evaluators
Review of Statutes
Under current Hawaii statutes, there are two programs that are used as tools in resolving child custody issues. These two distinct programs involve different functions under separate provisions of the HRS: the custody evaluator program and the guardian ad litem program.
In 1995, the Family Law Section of the Hawaii State Bar Association in cooperation with the Family Court of the First Circuit developed the Special Guardian Ad Litem project designed to help resolve difficult or complex custody cases in a fair and expeditious manner. After one year, the Special Guardian Ad Litem program was replaced with custody evaluators and custody guardians ad litem by then Senior Family Court Judge Michael Town. Subsequent memorandums in the Family Court of the First Circuit established the duties and responsibilities of these two positions, including qualifications, a fee schedule, and process for filing reports with the Family Court. Presently, only custody evaluators remain in use as the Family Court of the First Circuit abolished the Custody Guardian Ad Litem Program in 2002.
Custody evaluators are private experts designed to assist Family Court judges in determining appropriate custodial arrangements as well as visitation schedules. Subsequent court memorandums clarified the specific duties and responsibilities of custody evaluators as well as the qualifications and experience necessary to serve as a custody evaluator.
A custody evaluator is appointed by the Family Court and authorized, pursuant to HRS §571-46(4), to investigate, evaluate, and make recommendations relating to child custody determinations. The respective duties of a custody evaluator are defined statutorily as follows:
(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 shall make investigations and reports which 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.
HRS §571-46(4).
Payment for custody evaluators is not specifically provided for by statute. However, in the Family Court of the First Judicial Circuit, Judge Frances Wong issued a memorandum, dated December 5, 2001, specifying the fee schedule for custody evaluators. Specifically, the memorandum provides that:
The court will state a "cap" on fees in all orders appointing custody evaluators . . . . The "caps" for custody evaluators will normally range from $1500 to $3000, will be subject to further order of the court, and will not include costs. "Caps" may be exceeded depending on the resources of the parties, the complexity of the case and the experience of the professional and must be approved by the court. For . . . custody evaluators . . . , no extraordinary costs can be incurred without prior order of the court or a filed stipulation of the parties. In the event that the court orders parties into counseling or guided co-parenting planning, the court shall set "caps" for said services which can be exceeded only by further order or by agreement of the parties. The court, based on the totality of the circumstances, shall apportion fees and costs.
Memorandum, "'Custody Guardian Ad Litem and Custody Evaluation Program' in First Circuit," December 5, 2001.
In contrast, a GAL is appointed by the court to act as an advocate for a child. Section §571-46(8), HRS, governs the appointment of a GAL in a child custody determination and provides as follows:
(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.
HRS §571-46(8).
GALs, once appointed by the courts, are reimbursed in two ways for their services: the court either pays for the GAL services or orders one or both parties to pay the GAL for costs and fees. HRS §§571-46(e) and 587-34(e). Under HRS §571-87(b), the courts determine a reasonable compensation amount based on a rate of $40 an hour for out-of-court services and $60 an hour for in-court services with a statutorily capped fee of:
(1) Cases arising under chapters 587 and 346, part X:
(A) Predisposition $1,500;
(B) Postdisposition review hearing $500;
(2) Cases arising under chapters 560, 571,
580, and 584 $1,500.
Payments in excess of any maximum provided for under paragraphs (1) and (2) may be made whenever the court in which the representation was rendered certifies that the amount of the excess payment is necessary to provide fair compensation and the payment is approved by the administrative judge of such court.
HRS §571-87(b).
Discussion
At the August 19, 2004 task force meeting, some testifiers were confused over which program was the target of their complaints, the custody evaluator program or the guardian ad litem program. Most of the complaints were directed toward the guardian ad litem program; but it was not clear which program was in effect at the time of individual claimants' complaints. Thus, for this discussion section, the term "guardians ad litem" will be used generally to refer to both guardians ad litem and custody evaluators.
Testimony and recommendations with respect to the use and role of "guardians ad litem" in Family Court focused on two areas: (1) excessive fees, and (2) lack of standards and accountability. One concern voiced by the testifiers focused on the amount of fees charged by "guardians ad litem" during the course of family court litigation. A number of testifiers discussed their own cases in which "guardian ad litem" fees were in excess of thousands of dollars with little tangible results to justify the expense or believed that the fees charged violated statutorily-set caps.
A second concern voiced by testifiers centered upon the need for publicly-documented, reviewable standards to insure oversight and accountability by the Family Court regarding the appointment and performance of "guardians ad litem." Testifiers said they believed that court-appointed "guardians ad litem" in their cases often conducted themselves in an unprofessional manner and with little oversight by the Family Court, which relied upon the findings and recommendations contained in their reports.
At the October 11, 2004 informational hearing, Judge Frances Wong responded to questions regarding guardians ad litem and custody evaluators, stating that in 2002, the custody guardian ad litem program was abolished in response to numerous complaints that she investigated and determined to have merit.
Judge Wong also stated that she is presently working to establish a new custody investigation unit in place of the former custody guardian ad litem program. When finalized, the custody investigation unit will establish standards and a certification process for future guardians ad litem and custody evaluators, provide various social service for clients, and implement mediation and other forms of alternative dispute resolution throughout the Hawaii Family Court system. Attached as Appendix B is the Family Court's written summary of the proposed custody investigation process, based upon a model currently used in Maricopa County, Arizona.
Alternative Dispute Resolution
Review of Statutes
Currently in Hawaii, there are family court rules that provide:
The court, in its discretion or upon motion by a party, may order the parties to participate in an alternative dispute resolution process subject to conditions imposed by the court.
Hawaii Family Court Rules, Rule 53.1.
Hawaii also has a domestic violence exception for the mediation requirement in divorce and child custody and visitation proceedings when there are allegations of abuse. This statutory requirement in HRS §580-41.5, reads as follows:
(a) In contested divorce proceedings where there are allegations of spousal abuse, the court shall not require a party alleging the spousal abuse to participate in any component of any mediation program against the wishes of that party.
(b) A mediator who receives a referral or order from a court to conduct mediation shall screen for the occurrence of family violence between the parties. A mediator shall not engage in mediation when it appears to the mediator or when either party asserts that family violence has occurred unless:
(1) Mediation is authorized by the victim of the alleged family violence;
(2) Mediation is provided in a specialized manner that protects the safety of the victim by a mediator who is trained in family violence; and
(3) The victim is permitted to have in attendance at mediation, a supporting person of the victim's choice including but not limited to an attorney or advocate. If the victim chooses to exercise such option, any other party to the mediation will be permitted to have in attendance at mediation, a supporting person of the party's choice including but not limited to an attorney or advocate.
(c) In a proceeding concerning the custody or visitation of a child, if a protective order is in effect, the court shall not require a party alleging family violence to participate in any component of any mediation program against the wishes of that party.
(d) In a proceeding concerning the custody or visitation of a child, if there is an allegation of family violence and a protective order is not in effect, the court may order mediation or refer either party to mediation only if:
(1) Mediation is authorized by the victim of the alleged family violence;
(2) Mediation is provided in a specialized manner that protects the safety of the victim by a mediator who is trained in family violence; and
(3) The victim is permitted to have in attendance at mediation, a supporting person of the victim's choice including but not limited to an attorney or advocate. If the victim chooses to exercise such option, any other party to the mediation will be permitted to have in attendance at mediation, a supporting person of the party's choice including but not limited to an attorney or advocate.
HRS §580-41.5 (emphasis added).
Nationally, states have implemented different approaches in requiring mediation for family court proceedings. Approximately eight states have a statute requiring mandatory mediation. Of the eight states, only one has a requirement applying to family court proceedings other than child custody and visitation. Approximately thirty-three states have discretionary languages that allow the courts to decide if mediation is appropriate. In all of the states where mandatory mediation is codified, the provisions have an exception for cases with histories of domestic violence. A summary table of mediation requirements for Family Court cases in each state is included in Appendix E.
Discussion
The testimony and recommendations on this issue centered upon increasing the use of alternative dispute resolution techniques at the outset of the litigation as well as expanding and increasing the use of alternative dispute resolution to other Family Court proceedings beyond property division and those involving financial considerations.
V. FINDINGS
Upon the conclusion of its hearings, briefings, and group discussions, each task force group made the following findings:
Joint Custody
For many Family Court participants, the experience is litigious and adversarial. Unfortunately, the Family Court system presents a fear for parents that they are losing the ability to have a major role in the lives of their children. This fear polarizes parents emotionally, and in the end it is the children that ultimately are traumatized by the adversarial process.
Based on this understanding of the adversarial process, the joint custody task-force group made the following findings:
(1) Children recover faster from a parent's divorce or separation when less emotional trauma is associated with the process;
(2) Active participation from parents and extended family help children feel secure and included in a relationship with their parents when a divorce or separation occurs;
(3) Co-parenting arrangements reduce children's post separation distress and minimize feelings of alienation and anger;
(4) Children usually maintain better academic performance and relationships with peers and experience less incidents of substance abuse if they are in joint custody; and
(5) Parents who do not experience prolonged litigation (which may include the use of mediation) in their divorce and separation are usually able to regain financial and emotional stability for their family faster.
Temporary Restraining Orders and Protective Orders
Based upon their respective experiences with the TRO and PO process in the Hawaii Family Court, the TRO task force group made the following findings. These findings focused primarily on the TRO and PO statutes and the subsequent impact once a TRO or PO is issued:
(1) When the general provisions for domestic abuse protection orders were enacted in 1982, there were no provisions for protective orders for "extreme psychological abuse" and "malicious property damage." Both of these terms were added in subsequent amendments to the protective order provisions;
(2) Many TROs and POs are obtained by one party to a dispute to try to gain the advantage over another party in future or ongoing divorce proceedings or a custody disputes;
(3) The respondent in a TRO or PO proceeding often loses visitation rights as well as the ability to spend time with his or her children not because he or she is a threat to the children, but because the children are members of a household where the petitioner resides;
(4) For many TRO or PO cases where the petitioner and the respondent have children, the respondent's continued access to the children is usually cut off, even though the children are not named as a party to the TRO or PO. The respondent is usually cut off from visitation with the children because the children live with the petitioner, and Hawaii laws prevent the respondent from having any contact with the petitioner, as well as anyone who resides in the petitioner's household;
(5) Parties in a divorce proceeding or any other type of Family Court proceeding may file an independent action for a TRO or PO rather than a motion for TRO or PO as a part of the ongoing divorce or other Family Court proceeding. When this happens, a TRO or PO judge hears the case and the Family Court judge, who is handling the divorce or other Family Court case and may be more familiar with the parties, does not take part in granting or denying the independent action for the TRO or PO. Instead, there is usually a short and expedited hearing held by a TRO or PO judge without any background of the family's situation; and
(6) A finding or determination of family violence raises a rebuttable presumption that it is detrimental to the child and not in the child's best interest to be placed with the perpetrator of family violence. Thus, once an ex parte TRO is granted, there is significant pressure to stipulate to a PO without going to trial, in order to avoid potential findings of abuse which could affect later custody decisions because a finding or determination of family violence raises a rebuttable presumption that it is detrimental to the child and not in the child's best interests to be placed with the perpetrator of family violence.
The TRO/PO process errs on the side of caution, and the court has erred on the side of caution in issuing POs based only on allegations of spousal abuse. In some situations, a stipulation is a common result even though it is not based on factual evidence whose veracity has been tested by the court. Consequently, the ex parte TRO/PO process is biased against a respondent who must prove that allegations of spousal abuse are false. In that instance, misuse of the TRO process results in reward to the petitioner and harm to the respondent and children involved.
In addition to the findings made by task force members, the Committee also received input on these complex issues from representatives from the Domestic Violence Clearinghouse and family law practitioners. These discussions provided the Committee with a practitioner's view of the current TRO and PO process utilized in the Hawaii Family Court. The findings suggested by these individuals are as follows:
(1) There are insufficient financial and educational resources and personnel assigned to the TRO and PO calendar in the Hawaii Family Court of the First Judicial Circuit. Presently, there are only two judges assigned to the TRO calendar where daily caseload is extremely heavy. As a result, the written allegations contained in the petition are the only source of information available to a judge in regards to evaluating the credibility as well as the veracity of the petitioner's allegations. A verification or screening process does not exist presently which would not only aid judges in this determination, but also assist prospective petitioners unfamiliar with the legal process;
(2) It is crucial that Family Court judges, including per diem judges, assigned to the TRO calendar have both the experience and familiarity with the complex issues implicit in domestic abuse cases. However, no requirement exists either statutorily or in court rules that requires Family Court judges attend continuing judicial education and training programs prior to being assigned to the TRO calendar;
(3) When a TRO or PO is granted, often times there is a lack of clarity or specificity for both the petitioner and respondent in regards to the basis or grounds upon which the petition was granted. Presently, the judge marks the appropriate box on the court form without being required to identify the specific basis or grounds upon which the TRO or PO issued. This, in turn, raises due process concerns for both the petitioner and respondent; and
(4) Several task force participants raised concerns that TROs and POs are obtained by one party to a dispute to try to gain an advantage over the other parent in future or ongoing divorce proceedings or a custody disputes. For example, once an ex parte TRO is granted, there is significant pressure to stipulate to a PO without going to trial in order to avoid potential findings of abuse which could affect later custody decisions. This is because any finding or determination of family violence raises a rebuttable presumption that it is detrimental to the child and not in the child's best interests to be placed with the perpetrator of family violence.
Guardians ad Litem and Custody Evaluators
(1) Custody evaluators investigate facts and make recommendations to the courts for determining appropriate custodial arrangements and visitation schedules. The court relies heavily on the custody evaluator's recommendations and often makes its decision based solely on these recommendations. In these instances, the concern is that judicial decision making is transferred to the custody evaluators;
(2) Many custody evaluators and guardians ad litem are contracted by one party in the case. This financial arrangement could bias results or, in any event, creates the perception of bias in favor of the party who is paying the fees of the custody evaluator or the guardian ad litem;
(3) There is a lack of statutorily-established standards of conduct, oversight, accountability and rules of ethics for custody evaluators and guardians ad litem;
(4) There is no formal grievance system for the submission and resolution of complaints concerning custody evaluators and guardians ad litem; and
(5) The Family Courts does not receive feedback to hold the guardians ad litem accountable for their performance.
Alternative Dispute Resolution
(1) There is a general problem accessing the court system. Many parties are unable to afford legal representation and often represent themselves in legal proceedings, without proper knowledge of the law or legal process;
(2) There is a lack of resources available to educate the public on court proceedings or the benefits of alternative dispute resolution processes;
(3) Currently, there is only one type or level of mediation offered during Family Court proceedings. However, there are situations where early intervention or a higher level of mediation or alternative dispute resolution may be useful to both parties in resolving their disputes;
(4) Many states use parenting plans and parent coordinators as a part of the mediation process to resolve issues (e.g. visitation, exchanges, health and safety, communications) privately rather than through litigation; and
(5) There is a lack of regularly collected data available to properly evaluate and track the progress of all mediation programs.
VI. RECOMMENDATIONS
Task Force Groups' Recommendations
Upon conclusion of its meetings, briefings, and group discussions, each task force group recommended that these issues continue to be examined and evaluated annually to effectively address problems within the Family Court system. Each task force group also made specific recommendations which are outlined below:
Joint Custody
A majority of the task force group agreed with the following recommendations; however, an attorney from the Legal Aid Society of Hawaii objected to the recommendation that the standard for child custody should start with a presumption of "equal parenting." The recommendations of this task force group are as follows:
(1) "Joint custody" should be redefined in the current statutes as "shared parenting" and its definition should create a rebuttable presumption that it is in the child's best interest to have equal parenting continue after divorce or separation;
(2) "Shared parenting" should be defined as equal parenting time, and both parents should be given the opportunity to transition to co-parenting roles in the post-separation or divorced family structure; and
(3) When one parent is unable to care for the child or children for more than 24 hours, the other parent should have the first opportunity to care for the child or children as an alternative.
Temporary Restraining Orders and Protective Orders
The recommendations proposed by members of this task force group are not intended to restrict or diminish the right of abused individuals from applying for a TRO or PO against their abuser or on behalf of their minor child or household members. The majority of task force members agreed with the recommendations; however, an attorney with the Legal Aid Society objected to the recommendation that would delete from the "extreme psychological trauma" and "malicious property damage" from the domestic abuse statutes. The recommendations of this task force group are as follows:
(1) Requirements for obtaining ex parte TROs should be amended to require:
(a) Evidence of a past act or acts of physical harm, bodily harm, bodily injury, or assault;
(b) A reasonable likelihood of threat of imminent physical harm, bodily injury, or assault; or
(c) For minor family or household members, a TRO shall be issued for any act which would constitute an offense of abuse of family and household members under HRS §709-906, sexual offenses under part V of chapter 707, HRS, or child abuse under part VI of chapter 707;
The distinction from the present statutory language, and intent of this recommendation, is to limit ex parte TROs to situations where "physical harm, bodily harm, bodily injury, or assault" has occurred in the past or is imminent.
For situations involving "extreme psychological abuse" or "malicious property damage," a normal hearing process (consolidated with other existing or pending cases) should be utilized. Only imminent threat of physical harm or injury justifies an ex parte process which has inherently less protection for the respondent; yet, has significant adverse impact on constitutionally protected rights (access to a family home and contact with one's children);
(2) Require that family, children, household, property and other matters remain intact when ex parte TROs are granted;
(3) Require that if the petitioner and respondent have one or more children together, and the children are not named in the petition for an order of protection, reasonable supervised visitation should be arranged for the respondent, unless a finding is made that any visitation is not in the children's best interest;
(4) Require that any findings of fact related to the granting or denying of TROs or POs should not bind any subsequent Family Court cases filed within six months of the TRO or PO case; and
(5) Require that any TRO or PO filed between two or more persons who have a Family Court case pending between the same parties should have the two cases consolidated. In the alternative, require that the petitioner for the TRO or PO file a motion in the pending Family Court case. If however, there is no pending Family Court case, the petition for the TRO or PO should be filed as an independent action.
In addition to these proposed recommendations, the Committee also received suggested recommendations proposed by the Domestic Violence Clearinghouse as well as family law practitioners. These proposed recommendations are designed to address concerns raised by the dissenting task force group participants and are made with the recognition that the current TRO and PO process encompasses and touches upon a myriad of complex issues. These include: potential impact on future or ongoing child custody determinations, the adequacy and availability of financial and educational resources for judges responsible for issuing a TRO or PO, and the conduct of attorneys as well as individuals that utilize the TRO or PO process. In recognition of the foregoing concerns, the following recommendations are made to improve and strengthen the TRO and PO process:
(1) The Judiciary should contract with a non-profit service agency to conduct a pre-TRO screening process to properly evaluate and determine if the allegations made by the petitioner fall within the ambit of the TRO statute;
(2) Requirements for obtaining an ex parte TROs should be amended to require:
(a) The Family Court judge, assigned to the TRO calendar, should meet with a prospective petitioner on a one-on-one basis prior to issuing a TRO as opposed to relying solely upon the written allegations contained in the petition. This face-to-face meeting should, at a minimum, be required when the petitioner and respondent have or share children together. This will enable a judge to personally evaluate the credibility of the petitioner as well as the veracity of the petitioner's allegations; and
(b) When a TRO is issued, the judge should be required to make specific findings or at a minimum specifically identify which allegations alleged by the petitioner form the basis for issuing the TRO or PO, as opposed to checking off the appropriate box on the court approved forms;
(3) Additional Family Court judges should be assigned to the TRO calendar in order to provide better accountability and consistency in the way TRO and PO cases are handled and adjudicated;
(4) Family Court judges, including per diem judges, assigned to the TRO as well as the domestic violence calendars should attend annual legal education or training seminars in the area of domestic violence prevention in order to gain the necessary expertise and familiarity with the complex issues involved in these cases;
(5) There should be a requirement that any findings of fact related to the granting or denying of TROs or POs should not bind any subsequent Family Court case filed within six months of the TRO or PO case; and
(6) The Judiciary should create a pilot program to establish a combined domestic violence and divorce calendar with experienced and knowledgeable judges and a dedicated staff. This specialized calendar would handle divorce cases involving custody determinations where a TRO or PO based upon allegations of "family violence" has been issued. The same judge would adjudicate both proceedings to ensure familiarity and consistency in rulings.
Guardians ad Litem and Custody Evaluators
(1) Too much weight is given to the conclusions and recommendations of the court-appointed custody evaluators; thus, the custody evaluator should be replaced with court-appointed fact finders who only report the facts and who do not make recommendations to the court;
(2) In Family Court cases requiring custody evaluation, the Judiciary rather than private parties should contract with the court-appointed fact finders to avoid the perception of bias; rather than having the fact finders contract directly with the private parties in a Family Court case;
(3) An impartial, unbiased, and expeditious complaint and resolution system for oversight and accountability for court-appointed fact finders and guardians ad litem should be established;
(4) An impartial, unbiased, resolution process for Family Court cases should be established; and
(5) A commission should be established to conduct an impartial and unbiased external audit to:
(a) Evaluate Hawaii's custody evaluation programs' (e.g., guardians ad litem, custody evaluators, volunteer guardians ad litem, and other similar programs) policies, procedures, and authorizing laws;
(b) Research and compare the custody evaluation programs implemented in other states;
(c) Request that the Judiciary provide necessary and appropriate information for the audit and study; and
(d) Hold public hearings to obtain information from the public concerning specific problem areas that the audit identifies.
Alternative Dispute Resolution
(1) The Judiciary should enhance its website to better address children's needs during a divorce, explain the entire divorce litigation process, explain mediation options, and provide links and directory information for support programs such as parenting plans (examples of parenting plans provided by other states are attached as Appendix F);
(2) Parenting skills and communication skills should be considered as part of the high school education curriculum;
(3) The Department of Health should distribute brochures about parenting and divorce to marriage license applicants;
(4) The Judiciary should expand the Kids First program to include co-parenting classes for litigants engaged in high-conflict divorces;
(5) Family Court should expand the spectrum of alternative dispute resolution processes to include different levels of intervention for different levels of conflict. Specifically:
(a) Early access to mediation should be available to divorce litigants since the majority of litigants do not present themselves for motions or contested hearings;
(b) When a matter is set for a motion or hearing, the courts should provide a consistent message that resolution through mediation or other means is preferable and that all matters be directed through mediation;
(c) Matters set for pre-hearing mediation should be sent to a facilitative mediator that does not evaluate or present a report to the judge if an agreement is not reached;
(d) A neutral party who uses an evaluative process with a mediation process should be used for litigants who are more entrenched in litigation. For these types of litigants, reports should be provided to the judge when no agreement is reached; and
(e) Compensation for professionals who perform evaluation and mediation processes should be provided to assure the quality of the services;
(6) The Judiciary should explore establishing:
(a) An arbitration program for high conflict divorce cases;
(b) Parenting plans to help resolve issues earlier and avoid litigation; and
(c) A program that utilizes parent coordinators to work out issues, such as visitation, exchanges, health and safety issues, communication, etc. An example of a parent coordinator program from Vermont is attached as Appendix F; and
(7) The Judiciary should provide more thorough and accurate information about divorce processes, its litigants, and the final outcomes. Data should be collected more regularly, all programs should be evaluated, and program evaluation results should be measured against goals that are measurable and able to be tracked.
Special Interim Committee's Recommendations
Based on the task force meetings, briefings, group discussions, and each task force group's recommendations, your
Committee has chosen to adopt the recommendations made by the task force groups. These recommendations will form the basis for further discussion regarding the Hawaii Family Court as well as proposed legislation with respect to improving the process and procedures utilized in Hawaii Family Court.
Respectfully submitted on behalf of the members of the Committee on Human Services,
acting as your Special Interim
Committee,
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