| 47 | | - | SECTION 1. The legislature finds that individuals who abuse their intimate partners have been known to misuse court proceedings to control, harass, intimidate, coerce, or impoverish the abused partner. This litigation abuse occurs in a variety of contexts. In family court, abusers have used cases involving dissolution, legal separation, parenting plan action or modification, a protection order, or child custody to harm or exploit their partner and children's wellbeing. Abusers have also filed meritless civil lawsuits alleging breach of contract, defamation, or another tort to force the abused partner to spend time, money, and emotional resources responding to the lawsuit. Due to the lengthy nature of legal proceedings, litigation abuse can extend long after the relationship has ended. The legislature also finds that when child custody is under consideration, courts should also be aware that coercive control is a tactic that has been used by perpetrators to harm and exploit their partner and children's wellbeing. When courts are evaluating the best and safest way to issue custody orders, acts of coercive control should be included in the analysis. The purpose of this Act is to add coercive control and litigation abuse by a parent of a child to the list of factors to be considered by the court in determining what constitutes the best interest of the child when awarding custody and visitation rights to individuals 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. SECTION 2. Section 571-46, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows: "(b) In determining what constitutes the best interest of the child under this section, the court shall consider, but not be limited to, the following: (1) Any history of sexual or physical abuse of a child by a parent; (2) Any history of neglect or emotional abuse of a child by a parent; (3) The overall quality of the parent-child relationship; (4) The history of caregiving or parenting by each parent prior and subsequent to a marital or other type of separation; (5) Each parent's cooperation in developing and implementing a plan to meet the child's ongoing needs, interests, and schedule; provided that this factor shall not be considered in any case where the court has determined that family violence has been committed by a parent; (6) The physical health needs of the child; (7) The emotional needs of the child; (8) The safety needs of the child; (9) The educational needs of the child; (10) The child's need for relationships with siblings; (11) Each parent's actions demonstrating that they allow the child to maintain family connections through family events and activities; provided that this factor shall not be considered in any case where the court has determined that family violence has been committed by a parent; (12) Each parent's actions demonstrating that they separate the child's needs from the parent's needs; (13) Any evidence of past or current drug or alcohol abuse by a parent; (14) The mental health of each parent; (15) The areas and levels of conflict present within the family; [and] (16) A parent's prior wilful misuse of the protection from abuse process under chapter 586 to gain a tactical advantage in any proceeding involving the custody determination of a minor. Such wilful misuse may be considered only if it is established by clear and convincing evidence, and if it is further found by clear and convincing evidence that in the particular family circumstance the wilful misuse tends to show that, in the future, the parent who engaged in the wilful misuse will not be able to cooperate successfully with the other parent in their shared responsibilities for the child. The court shall articulate findings of fact whenever relying upon this factor as part of its determination of the best interests of the child. For the purposes of this section, when taken alone, the voluntary dismissal of a petition for protection from abuse shall not be treated as prima facie evidence that a wilful misuse of the protection from abuse process has occurred[.]; (17) Any history of coercive control of the child or a parent of the child by the other parent; and (18) Any history of litigation abuse by a parent of the child against the other parent. As used in this subsection: "Coercive control" shall have the same meaning as defined in section 586‑1. "Litigation abuse" means: (1) (A) The opposing parties have a current or former intimate partner relationship; (B) The party who is filing, initiating, advancing, or continuing the litigation: (i) Is a restrained party under a temporary restraining order; (ii) Has been arrested for violation of chapter 586 or 709; or (iii) Has been the subject of an investigation by the child welfare services branch of the department of human services; and (C) The litigation is being initiated, advanced, or continued primarily for the purpose of harassing, intimidating, or maintaining contact with the other party; and (2) At least one of the following factors is present: (A) Claims, allegations, and other legal contentions made in the litigation are not warranted by existing law or by a reasonable argument for the extension, modification, or reversal of existing law, or the establishment of new law; (B) Allegations and other factual contentions made in the litigation are without evidentiary support; or (C) The issue or issues that are the basis of the litigation have previously been contested in one or more courts and the actions have been litigated and disposed of unfavorably to the party filing, initiating, advancing, or continuing the litigation." SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 5. This Act shall take effect upon its approval. |
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| 47 | + | SECTION 1. The legislature finds that individuals who abuse their intimate partners have been known to misuse court proceedings to control, harass, intimidate, coerce, or impoverish the abused partner. This litigation abuse occurs in a variety of contexts. In family court, abusers have used cases involving dissolution, legal separation, parenting plan action or modification, a protection order, or child custody to harm or exploit their partner and children's wellbeing. Abusers have also filed meritless civil lawsuits alleging breach of contract, defamation, or another tort to force the abused partner to spend time, money, and emotional resources responding to the lawsuit. Due to the lengthy nature of legal proceedings, litigation abuse can extend long after the relationship has ended. The legislature also finds that when child custody is under consideration, courts should also be aware that coercive control is a tactic that has been used by perpetrators to harm and exploit their partner and children's wellbeing. When courts are evaluating the best and safest way to issue custody orders, acts of coercive control should be included in the analysis. The purpose of this Act is to add coercive control to the list of factors to be considered by the court in determining what constitutes the best interest of the child. SECTION 2. Section 586-1, Hawaii Revised Statutes, is amended as follows: 1. By adding a new definition to be appropriately inserted and to read as follows: ""Litigation abuse" means: (1) (A) The opposing parties have a current or former intimate partner relationship; (B) The party who is filing, initiating, advancing, or continuing the litigation: (i) Is a restrained party under a temporary restraining order; (ii) Has been arrested for violation of chapter 586 or 709; or (iii) Has been the subject of an investigation by child welfare services branch of the department of human services; and (C) The litigation is being initiated, advanced, or continued primarily for the purpose of harassing, intimidating, or maintaining contact with the other party; and (2) At least one of the following factors: (A) Claims, allegations, and other legal contentions made in the litigation are not warranted by existing law or by a reasonable argument for the extension, modification, or reversal of existing law, or the establishment of new law; (B) Allegations and other factual contentions made in the litigation are without evidentiary support; or (C) The issue or issues that are the basis of the litigation have previously been contested in one or more courts and the actions have been litigated and disposed of unfavorably to the party filing, initiating, advancing, or continuing the litigation." 2. By amending the definition of "coercive control" to read as follows: ""Coercive control" means a pattern of threatening, humiliating, or intimidating actions, which may include assaults, or other abuse that is used to harm, punish, or frighten an individual. "Coercive control" includes a pattern of behavior that seeks to take away the individual's liberty or freedom and strip away the individual's sense of self, including bodily integrity and human rights, whereby the "coercive control" is designed to make an individual dependent by isolating them from support, exploiting them, depriving them of independence, and regulating their everyday behavior including: (1) Isolating the individual from friends and family; (2) Controlling how much money is accessible to the individual and how it is spent; (3) Monitoring the individual's activities, communications, and movements; (4) Name-calling, degradation, and demeaning the individual frequently; (5) Threatening to harm or kill the individual or a child or relative of the individual; (6) Threatening to publish information or make reports to the police or the authorities; (7) Damaging property or household goods; [and] (8) Forcing the individual to take part in criminal activity or child abuse[.]; and (9) Litigation abuse." SECTION 3. Section 571-46, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows: "(b) In determining what constitutes the best interest of the child under this section, the court shall consider, but not be limited to, the following: (1) Any history of sexual or physical abuse of a child by a parent; (2) Any history of neglect or emotional abuse of a child by a parent; (3) The overall quality of the parent-child relationship; (4) The history of caregiving or parenting by each parent prior and subsequent to a marital or other type of separation; (5) Each parent's cooperation in developing and implementing a plan to meet the child's ongoing needs, interests, and schedule; provided that this factor shall not be considered in any case where the court has determined that family violence has been committed by a parent; (6) The physical health needs of the child; (7) The emotional needs of the child; (8) The safety needs of the child; (9) The educational needs of the child; (10) The child's need for relationships with siblings; (11) Each parent's actions demonstrating that they allow the child to maintain family connections through family events and activities; provided that this factor shall not be considered in any case where the court has determined that family violence has been committed by a parent; (12) Each parent's actions demonstrating that they separate the child's needs from the parent's needs; (13) Any evidence of past or current drug or alcohol abuse by a parent; (14) The mental health of each parent; (15) The areas and levels of conflict present within the family; [and] (16) A parent's prior wilful misuse of the protection from abuse process under chapter 586 to gain a tactical advantage in any proceeding involving the custody determination of a minor. Such wilful misuse may be considered only if it is established by clear and convincing evidence, and if it is further found by clear and convincing evidence that in the particular family circumstance the wilful misuse tends to show that, in the future, the parent who engaged in the wilful misuse will not be able to cooperate successfully with the other parent in their shared responsibilities for the child. The court shall articulate findings of fact whenever relying upon this factor as part of its determination of the best interests of the child. For the purposes of this section, when taken alone, the voluntary dismissal of a petition for protection from abuse shall not be treated as prima facie evidence that a wilful misuse of the protection from abuse process has occurred[.]; and (17) Any history of coercive control of the child or a parent of the child by the other parent. For the purposes of this paragraph "coercive control" shall have the same meaning as in section 586-1." 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. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 6. This Act shall take effect upon its approval. INTRODUCED BY: _____________________________ |
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