580-3.5 Personal judgment against absent defendant
580-4 Cross-complaint
580-5 Proof
580-6 Guardian ad litem for incompetent
defendant
580-7 Examination of parties to prevent
collusion
580-8 Procedure when collusion suspected
580-9 Temporary support, etc.
580-10 Restraining orders; appointment of master
580-11 Care, custody, education, and maintenance
of children
pendente lite
580-12 Sequestration of property
580-13 Security and enforcement of maintenance
and alimony
580-14 Renumbered
580-15 County attorneys to represent court
580-16 Divorce decree, support order; social
security number
Part II. Annulment
580-21 Grounds for annulment
580-22 Nonage
580-23 Former husband or wife living
580-24 Allowance for spouse and family
580-25 Inheritance by children
580-26 Lack of mental capacity
580-27 Legitimacy in case of annulment
580-28 Physical incapacity
580-29 No annulment solely on confessions
Part III. Divorce
580-41 Divorce
580-41.5 Battered spouses; exemption from mediation
in divorce
proceedings
580-42 Irretrievable breakdown
580-42.5 Recrimination no defense
580-43 Repealed
580-44 Persons affected with Hansen's disease
represented by
attorney general
580-45 Decree
580-46 Final judgment; nunc pro tunc entry;
validation of
certain marriages
580-47 Support orders; division of property
580-47.5 Notice to parties with children
580-48 Repealed
580-49 Support of insane spouse after divorce
580-50 Repealed
580-51 Modification of alimony on remarriage
580-52 Marriage after divorce
580-53 to 55 Repealed
580-56 Property rights following dissolution of
marriage
Part IV. Separation
580-71 Grounds for separation
580-71.5 Separation no bar to divorce
580-72 Married persons may bring action in own
name
580-73 Repealed
580-74 Support of spouse and children
580-75 Status of spouse during separation
580-76 Revocation or modification of separation
decrees
Cross References
Marriage and family therapists, see chapter 451J.
Case Notes
"Allowance" as used in chapter is synonym for
spousal or family support. 73 H. 566, 836 P.2d 1081.
§709-903 Persistent nonsupport. (1) A
person commits the offense of persistent nonsupport if the person knowingly and
persistently fails to provide support which the person can provide and which
the person knows the person is legally obliged to provide to a spouse, child,
or other dependent.
(2) "Support" includes but is not
limited to food, shelter, clothing, education, and other necessary care as
determined by law.
(3) Persistent nonsupport is a misdemeanor. [L
1972, c 9, pt of §1; gen ch 1993]
COMMENTARY ON §709-903
The purpose of laws dealing with nonsupport by a person who
owes a duty of support to another is to enforce compliance with the legislative
directive setting forth a community standard; yet a policy of strict criminal
punishment of offenders would frustrate the purpose of the law by
incapacitating (by incarceration or fine) the defendant from providing the
support.
Exemplary
punishment is of doubtful efficacy in complex family situations, where many
forces, psychic, social, and economic, may combine to excuse, if not justify,
the behavior. Moreover, imprisonment should be a last resort here, since it
incapacitates the defendant from providing the very support which the community
seeks to require and frustrates any broader effort to rehabilitate the family
situation. Recent thought has favored the development of "family
courts" staffed to handle non-support and other intra-family problems
primarily through social work, with less concentration on purely fiscal
aspects.[1]
The Code adopts the position that intervention of the criminal
process ought to take place only as a last resort. The primary resort ought to
be to the social and counseling processes of the Family Court. It is only when
a record has been established of repeated, persistent failure to provide the
support which the defendant can provide and which the defendant knows the
defendant is obliged by law to provide that the criminal process ought to be
employed.
By focussing on
"persistent" defaulters, we express a legislative policy in favor of
resort, in the first instance, to non-penal measures....
The concept
of "persistent" violation is not unprecedented in penal law.... The
term connotes repetition, obstinacy, wilfulness; and it is difficult to
formulate a more precise standard to differentiate the aggravated case of
continued defiance of the support law, which we wish to penalize, from the
simple case of default which may be solved by an official notice or judicial
order to pay, or some intelligent social work.[2]
There were a number of provisions in previous law which dealt
with the problem of nonsupport, and they were not totally consistent with one
another. None of them focused on the concept of persistent default as a
condition precedent for a criminal sanction; however, in actual practice, the
prosecutor probably required some degree of persistency.
Under Hawaii's adoption, in modified form of the Uniform
Desertion and Nonsupport Act:
Any husband who
deserts or wilfully neglects his wife, or wilfully fails, neglects, or refuses
to provide for her support or maintenance, thereby reducing her to destitute or
necessitous circumstances, or any parent who deserts or wilfully neglects his
or her child or children under the age of sixteen years, or wilfully fails,
neglects or refuses to provide for the support or maintenance of the child or
children or wilfully fails, neglects, or refuses to pay amounts awarded for the
support and maintenance of such child or children under a decree of divorce,
thereby reducing the child or children to destitute or necessitous
circumstances, shall be guilty of a misdemeanor, and on conviction thereof,
shall be punished by a fine not exceeding $500 or imprisonment not exceeding
one year, or both; provided, that instead of imposing the sentence provided in
this section the court may release the defendant under suspended sentence for
such period as shall be fixed by the court and under such terms as shall be
fixed by the court as to the payment weekly or otherwise of money for the
support of the wife or child and as to giving security for such payments and
for the appearance of the defendant at such time or times as the court shall
direct. The terms so fixed by the court shall be subject to change or
additional security at any time.[3]
Under the chapter dealing with protection of children,
substantially similar conduct, as it related to children, subjected the
offender to a sentence with approximately half the severity of that provided
under the Uniform Act.
Any person who
wilfully abandons...any child under his legal control or neglects to provide
the child with suitable or necessary food or clothing...shall be fined not more
than $200 or imprisoned not more than six months.[4]
The statutes imposing a duty of support are not exactly
consistent in defining the extent of the duty. Although an illegitimate child
does not have a right to be supported by its father,[5] if an action to
establish paternity is brought and paternity is established, the child becomes
entitled, with certain exceptions, to "support, maintenance and
education" until the child reaches eighteen years of age.[6] Under
certain specific circumstances, a step-parent is required to support his or her
step-child.[7] The age to which the duty to support one's children continues
is not specified, except in the case of illegitimates, although by inference it
continues until the child has achieved majority.[8]
The Code attempts to reconcile some of the latent ambiguities
which exist in comparing the various sections of prior law. A single section
covering penal default of support provides a uniform authorized sentence for
similar conduct. By covering "spouse, child or other dependent," the
Code provides that the penal sanction may be employed in all cases where the
support law establishes a duty of support. The use of the word
"child" in this section is intended to cover all persons who have not
reached the age of majority. The definition of support ensures that all forms
of care which are required by the support law are covered. However, unlike the
previous law, which, on its face, would allow resort to prosecution in the
first instance of default, the Code requires that the default be persistent
before a prosecution can be successfully maintained.
SUPPLEMENTAL COMMENTARY ON §709-903
The Proposed Draft had included "medical attention"
as one of the items of "support." However, that was deleted by the
Legislature in 1972. As stated in Conference Committee Report No. 2 (1972):
"Your Committee has agreed to the deletion of the words
'medical attention' as a requisite of the term 'support' in order to avoid
penalizing the free exercise of certain religions."
Case Notes
Reasonable to conclude that term "support" includes
medical attention and medical assistance, except where the exercise of religion
is involved. 8 H. App. 506, 810 P.2d 672.
__________
§709-903Commentary:
1. M.P.C., Tentative Draft No. 9, comments at 188 (1959).
2. Id. at 188-189.
3. H.R.S. §575-1.
4. Id. §577-12.
5. See id. §577-14 (semble).
6. Id. §579-4.
7. Id. §577-4.
8. But see id. §571-2, which defines, for purposes of Chapter
571, "child" to mean "a person less than eighteen years of
age."
§580-56 Property rights following
dissolution of marriage. (a) Every decree of divorce which does not
specifically recite that the final division of the property of the parties is
reserved for further hearing, decision, and orders shall finally divide the
property of the parties to such action.
(b) Following the entry of a decree of divorce
in any matrimonial action in which the final division of the property of the
parties to such action is reserved for further hearings, decisions, and orders,
notwithstanding the provisions of section 560:2-802, or any other provisions of
the law to the contrary, each party to such action shall continue to have all
of the rights to and interests in the property of the other party to such
action as provided by chapter 533 and chapter 560, or as otherwise provided by
law to the same extent he or she would have had such rights or interests if the
decree of divorce had not been entered, until the entry of a decree or order
finally dividing the property of the parties to such matrimonial action, or as
provided in subsection (d) of this section.
(c) When a party to a matrimonial action has
remarried following the entry of a decree of divorce, in which the final
division of the property of the parties is reserved for further hearings,
decisions, and orders, but prior to the entry of a decree or order finally
dividing the property owned by the parties to that action, notwithstanding the
provisions of chapter 533 and chapter 560, the spouse of such remarried party
shall have none of the rights or interests in the former spouse's real property
or personal estate as provided in chapter 533 and chapter 560, or as otherwise
provided by law, until such time as a decree or order finally dividing the
property owned by the parties or either of them as of the effective date of the
entry of the decree of divorce dissolving his or her prior marriage shall be
entered. Upon the entry of a decree or order finally dividing the property of
the parties to a matrimonial action in which a decree of divorce has been
entered, the spouse of a party to such action who has remarried shall have all
of the rights of a spouse as provided by chapter 533 and chapter 560, or as
otherwise provided by law, in and to the property of the former spouse vested
in such spouse by such decree or order finally dividing the property of the
parties or either of them, as of the effective date of the entry of the decree
of dissolution of the prior marriage.
(d) Following the entry of a decree of
divorce, or the entry of a decree or order finally dividing the property of the
parties to a matrimonial action if the same is reserved in the decree of
divorce, or the elapse of one year after entry of a decree or order reserving
the final division of property of the party, a divorced spouse shall not be
entitled to dower or curtesy in the former spouse's real estate, or any part
thereof, nor to any share of the former spouse's personal estate. [CC 1859,
§1332; RL 1925, §2986; RL 1935, §4483; RL 1945, §12234; RL 1955, §324-45; HRS §580-56;
am L 1973, c 192, §2; am L 1983, c 209, §1]
Case Notes
Divorce cuts off right to dower. 12 H. 265; 35 H. 440.
Divorce court in one state does not have power to directly
affect, by decree, title to real property in another state. 56 H. 295, 535
P.2d 1109.
One-year limitation applies to all entitlements to former
spouse's personal estate; "personal estate" includes living person's
property. Section does not violate due process by imposing unreasonable
procedural requirement on adjudication of claim. 69 H. 1, 730 P.2d 338.
Section 580-47 controls the division of property of divorced
parties in the event one dies in the interim between their divorce and the
division of property. 70 H. 605, 780 P.2d 80.
Where family court's domestic relations order amending the
initial divorce decree was not inconsistent with the language of the initial
divorce decree or this section, the family court possessed appropriate
jurisdiction to amend the divorce decree. 100 H. 397, 60 P.3d 798.
Where jurisdiction to divide the parties' property is not
reserved, it terminates when the time to appeal the decree expires. 1 H. App.
605, 623 P.2d 893.
No inchoate dower right in property if only a reservation to
purchase property existed on date of divorce decree. 4 H. App. 41, 659 P.2d
759.
Divorced spouse not entitled to former spouse's personal
estate. 7 H. App. 286, 758 P.2d 197.
Does not divest family court of jurisdiction under family
court rule to change division of property issue when request for change is
based on a retroactive change in relevant federal law. 8 H. App. 559, 815 P.2d
28.
Section does not apply where family court lacks jurisdiction
to finally adjudicate division and distribution of property and debts of
parties. 9 H. App. 176, 830 P.2d 1158.
When computing subsection (d)'s "one year" period,
the time from filing a notice of appeal of the family court's decree deciding
division and distribution of property and debts to the entry of the appellate
court's judgment on appeal is excluded. 9 H. App. 214, 832 P.2d 280.
In light of subsection (a), when the divorce decree ordered
husband to transfer a specified value of husband's stocks and funds to wife,
that specified value of husband's stocks and funds, for purposes of subsection
(d), was no longer a part of husband's personal estate. 108 H. 504 (App.), 122
P.3d 284.
Cited: 21 H. 264, 266.
§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). [CC 1859, §1338; am L 1903, c 22, §2; RL
1925, §2989; RL 1935, §4486; RL 1945, §12238; RL 1955, §324-63; HRS §580-74; am
L 1973, c 211, §5(u); am L 1974, c 65, pt of §2; am L 1978, c 77, §3]
Case Notes
Order awarding alimony will not be disturbed where there has
been no abuse of discretion. 9 H. 352.
Court cannot upon decreeing separation award specific
property as alimony; words "or out of his property" limited by
§580-13. 26 H. 128.
Alimony in gross not allowable upon decree of separation from
bed and board. 27 H. 230.
Liability under order for temporary maintenance despite final
decree of separate maintenance. 38 H. 148.
Considerations when decreeing alimony. 42 H. 279.
Section does not authorize division of property. 42 H. 279.
Cited: 31 H. 574, 576.
PART VI
PART VI.
TERMINATION OF PARENTAL RIGHTS
§571-61 Termination of parental rights;
petition. (a) Relinquishment. The parents or either parent or the
surviving parent who desire to relinquish parental rights to any natural or
adopted child and thus make the child available for adoption or readoption, may
petition the family court of the circuit in which they or he or she resides, or
of the circuit in which the child resides, or was born, for the entry of a
judgment of termination of parental rights. The petition shall be verified and
shall be substantially in such form as may be prescribed by the judge or senior
judge of the family court. The petition may be filed at any time following the
mother's sixth month of pregnancy; provided that no judgment may be entered
upon a petition concerning an unborn child until after the birth of the child
and in respect to a legal parent or parents until the petitioner or petitioners
have filed in the termination proceeding a written reaffirmation of their
desires as expressed in the petition or in respect to a legal parent or parents
until the petitioner or petitioners have been given not less than ten days'
notice of a proposal for the entry of judgment and an opportunity to be heard
in connection with such proposal.
(b) Involuntary termination.
(1) The family courts may terminate the parental
rights in respect to any child as to any legal parent:
(A) Who has deserted the child without
affording means of identification for a period of at least ninety days;
(B) Who has voluntarily surrendered the care
and custody of the child to another for a period of at least two years;
(C) Who, when the child is in the custody of
another, has failed to communicate with the child when able to do so for a
period of at least one year;
(D) Who, when the child is in the custody of
another, has failed to provide for care and support of the child when able to
do so for a period of at least one year;
(E) Whose child has been removed from the
parent's physical custody pursuant to legally authorized judicial action under
section 571-11(9), and who is found to be unable to provide now and in the
foreseeable future the care necessary for the well-being of the child;
(F) Who is found by the court to be mentally
ill or mentally retarded and incapacitated from giving consent to the adoption
of or from providing now and in the foreseeable future the care necessary for
the well-being of the child;
(G) Who is found not to be the child's natural
or adoptive father.
(2) The family courts may terminate the parental
rights in respect to any minor of any natural but not legal father who is an
adjudicated, presumed or concerned father under chapter 578, or who is named as
the father on the child's birth certificate:
(A) Who falls within subparagraph (A), (B),
(C), (D), (E), or (F) of paragraph (1);
(B) Whose child is sought to be adopted by the
child's stepfather and the stepfather has lived with the child and the child's
legal mother for a period of at least one year;
(C) Who is only a concerned father who has
failed to file a petition for the adoption of the child or whose petition for
the adoption of the child has been denied; or
(D) Who is found to be an unfit or improper
parent or to be financially or otherwise unable to give the child a proper home
and education.
(3) In respect to any proceedings under paragraphs
(1) and (2), the authority to terminate parental rights may be exercised by the
court only when a verified petition, substantially in the form above
prescribed, has been filed by some responsible adult person on behalf of the
child in the family court of the circuit in which the parent resides or the
child resides or was born and the court has conducted a hearing of the
petition. A copy of the petition, together with notice of the time and place
of the hearing thereof, shall be personally served at least twenty days prior
to the hearing upon the parent whose rights are sought to be terminated. If
personal service cannot be effected within the State, service of the notice may
be made as provided in section 634-23 or 634-24.
(4) The family courts may terminate the parental
rights in respect to any child as to any natural father who is not the child's
legal, adjudicated, presumed or concerned father under chapter 578.
Such authority may be exercised under this
chapter only when a verified petition, substantially in the form above
prescribed, has been filed by some responsible adult person on behalf of the
child in the family court of the circuit in which the parent resides or the
child resides or was born, and the court has conducted a hearing of the
petition.
If the mother of the child files with the
petition an affidavit representing that the identity or whereabouts of the
child's father is unknown to her or not ascertainable by her or that other good
cause exists why notice cannot or should not be given to the father, the court
shall conduct a hearing to determine whether notice is required.
If the court finds that good cause exists why
notice cannot or should not be given to the child's father, and that the father
is neither the legal nor adjudicated nor presumed father of the child, nor has
he demonstrated a reasonable degree of interest, concern, or responsibility as
to the existence or welfare of the child, the court may enter an order
authorizing the termination of the father's parental rights and the subsequent
adoption of the child without notice to the father. [L 1965, c 232, pt of §1;
Supp, §333-29; HRS §571-61; am L 1970, c 205, §2; am L 1971, c 46, §1; am L
1973, c 211, §1(h); am L 1974, c 74, §1; am L 1976, c 85, §14; am L 1980, c 55,
§1; am L 1982, c 49, §1; am L 1983, c 171, §4; am L 1993, c 160, §2]
Case Notes
No constitutional right of minor mother was violated when
during her absence from hearing she was represented by guardian ad litem. 52
H. 395, 477 P.2d 780.
In subsection (b)(1)(D): "Care and support" refers
exclusively to financial support; involuntary termination may not occur absent
finding of purpose to abdicate parental rights; one year period does not refer
solely to the year immediately preceding petition's filing; not
unconstitutionally vague. 64 H. 85, 637 P.2d 760.
"Foreseeable future" means three years from the
filing date of the petition for termination of parental rights. 8 H. App. 66,
793 P.2d 669.
Record of child protective services case can be considered in
a case brought under this section. 8 H. App. 161, 795 P.2d 294.
Father's right to custody was terminated and children were
placed in the custody of foster parents. 8 H. App. 377, 805 P.2d 1215.
Nothing in subsection (a) or chapter 587 indicates that when
the department of human services and the affected parents settle a termination
proceeding, they may do so only by resorting to a subsection (a) proceeding.
90 H. 200 (App.), 978 P.2d 166.
Trial court erred in applying clear and convincing evidence
standard of proof in deciding whether natural father was an unfit parent in a
petition by grandparents for guardianship of the person of their grandson, as a
guardianship of the person of a minor is neither absolute nor irrevocable, and
the heightened standard of proof attendant upon those attributes of a
termination of parental rights did not apply. 106 H. 75 (App.), 101 P.3d 684.
House Bill
[CHAPTER
583A]
UNIFORM
CHILD-CUSTODY JURISDICTION
AND
ENFORCEMENT ACT
Part I. General Provisions
Section
583A‑101 Short title
583A‑102 Definitions
583A‑103 Proceedings
governed by other law
583A‑104 Application to
Indian tribes
583A‑105 International
application of chapter
583A‑106 Effect of
child-custody determination
583A‑107 Priority
583A‑108 Notice to
persons outside State
583A‑109 Appearance and
limited immunity
583A‑110 Communication
between courts
583A‑111 Taking
testimony in another state
583A‑112 Cooperation
between courts; preservation of
records
Part II. Jurisdiction
583A‑201 Initial child‑custody
jurisdiction
583A‑202 Exclusive,
continuing jurisdiction
583A‑203 Jurisdiction
to modify determination
583A‑204 Temporary
emergency jurisdiction
583A‑205 Notice;
opportunity to be heard; joinder
583A‑206 Simultaneous
proceedings
583A‑207 Inconvenient
forum
583A‑208 Jurisdiction
declined by reason of conduct
583A‑209 Information to
be submitted to court
583A‑210 Appearance of
parties and child
Part III. Enforcement
583A‑301 Definitions
583A‑302 Enforcement
under Hague Convention
583A‑303 Duty to
enforce
583A‑304 Temporary
visitation
583A‑305 Registration
of child‑custody determination
583A‑306 Enforcement of
registered determination
583A‑307 Simultaneous
proceedings
583A‑308 Expedited
enforcement of child‑custody
determination
583A‑309 Service of
petition and order
583A‑310 Hearing and
order
583A‑311 Warrant to
take physical custody of child
583A‑312 Costs, fees,
and expenses
583A‑313 Recognition
and enforcement
583A‑314 Appeals
583A‑315 Role of
attorney general and of prosecuting
attorneys
583A‑316 Role of law
enforcement
583A‑317 Costs and
expenses
(Make sure to consult a lawyer or check your local laws for any changes.)
