Report Title:

Sibling Visitation Rights

 

Description:

Affirms sibling visitation rights and establishes procedures for enforcement and visitation. Establishes a rebuttable presumption in cases of the adoption of orphaned children that sibling visitation is in the best interests of the child.

THE SENATE

S.B. NO.

2151

TWENTY-FIRST LEGISLATURE, 2002

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to visitation.

 

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

SECTION 1. Chapter 571, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated, and to read as follows:

"§571-   Siblings' visitation rights; petition; notice; order. (a) A sibling may file a petition with the court for an order of reasonable visitation rights if the sibling is of full legal age and capacity. If the sibling is not of full legal age and capacity, the sibling’s spouse, parent, custodian, or guardian may file a petition for an order of reasonable visitation rights on behalf of the sibling.

(b) The court may award reasonable visitation rights provided that the following criteria are met:

(1) This State is the home state of the child at the time of the commencement of the proceeding;

(2) Reasonable visitation rights are in the best interests of the child; and

(3) Either or both of the child’s parents are deceased, or the child’s parents are deceased, or the child’s parents are divorced or residing separate and apart.

(c) No hearing for an order of reasonable visitation rights under this section shall be had unless each of the living parents and the child’s custodians shall have had due notice, actual or constructive, of the allegations of the petition and of the time and place of the hearing.

(d) An order made pursuant to this section shall be enforceable by the court, and the court may issue other orders to carry out these enforcement powers if in the best interests of the child.

(e) Sibling visitation rights shall remain within the court’s jurisdiction until such time as the child reaches full legal age and capacity."

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

"§571-46 Criteria and procedure in awarding custody and visitation. In the 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;

(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 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;

(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; provided that in every case of a proposed adoption executed by any person or agency having legal custody of the child or legally empowered to consent in accordance with chapter 578, a determination by the court that the child is an orphan raises a rebuttable presumption that reasonable visitation by the child’s siblings is in the best interests of the child; and provided further that for purposes of this paragraph, "orphan" shall have the same meaning as used in chapter 577;

(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 must 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 primary 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, 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 committed family violence only if the court finds that adequate provision for the physical safety and psychological well-being of the child and adequate provision for the safety of the parent who is a victim of family violence can be made;

(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 counseling relating to the victim's status or behavior as a victim, individually or with the perpetrator of family violence, 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; and

(14) A supervised visitation center must provide a secure setting and specialized procedures for supervised visitation and the transfer of children for visitation, and provide supervision by a person trained in security and the avoidance of family violence."

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

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