”’Editor’s note: Many of Hawaii’s families who have dealt with the state’s family court, whether because of divorces, custody hearings, temporary restraining orders or guardianship cases, have complained about being treated unfairly.”’

”’The problems are so severe, with many families torn apart by decisions made in this court, that the Hawaii State Legislature requested an audit of the court system by the state auditor.”’

”’A special task force also was convened after the conclusion of the 2004 session, and recently completed its report and list of recommendations to the state Legislature, based on testimony and a study of the system.”’

”’Below is the final report made public. There are four main areas addressed: Standards relating to “joint custody” and “best interests of the child”; Accountability of Family Courts in using interventions such as temporary restraining orders (TROs) and protective orders (POs); Cost-effectiveness and accountability of guardians ad litem (GALs) and other providers (e.g. custody evaluators); and Mandatory mediations (alternative dispute resolution) for all Family Court proceedings.”’

”’The state Legislature, which convenes on Jan. 19, 2005, will have to decide whether to implement any of the changes that require legislation.”’

”’2005 SPEC. COM. REP. NO., RE: S.R. 40, S.D. 2”’

The 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:”

”I. INTRODUCTION”

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

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