Happy Birthday, Family Court! 50 Years of Family Law
| Publication year | 2015 |
| Citation | Vol. 19 No. 07 |
by William C. Darrah
Happy 50th Birthday, Hawai'i Family Court!
Fifty years ago, out of a growing concern that "children and families whose rights and well-being are jeopardized [need to] be assisted and protected," the 1965 Hawai'i Legislature created "a system of family courts [whose] policy and purpose [would be] to promote the reconciliation of distressed juveniles with their families, foster the rehabilitation of juveniles in difficulty render appropriate punishment to offenders, and reduce juvenile delinquency."1 In doing so, the Legislature gave the Family Courts exclusive original jurisdiction over all matters involving the family, including divorce, annulment, legal separation, custody, child support, support enforcement, paternity, adoption, guardianship of minors, protection of dependent adults, parental rights termination, domestic abuse, family criminal abuse, and civil commitment.2
1. What is Family Law?
Family law is that separate and distinct area of the law which deals with all aspects of the family and family relations. It extends to "spouses or reciprocal beneficiaries, former spouses or former reciprocal beneficiaries, people who have a child in common, parents, children, persons related by consanguinity, persons jointly residing or formerly residing in the same dwelling unit, and persons who have or have had a dating relationship" defined as those who have had "a romantic, courtship, or engagement relationship, often but not necessarily characterized by actions of an intimate or sexual nature, [not including] a casual acquaintanceship or ordinary fraternization between persons in a business or social context."3
No other legal discipline covers such a broad, varied, and emotionally-charged terrain. Nor is any other area of the law so important, for family law defends the integrity of the family, and "[t]he state of the family determines the state of our society."4
2. The Changing American I amily
Family law has been impacted by the dramatic changes in family life which have occurred in America over the past half-century. Marriage has become less central to the life course, as individuals marry at older ages or not at all.5"Divorce rates rose rapidly until the 1980s, and then plateaued and declined somewhat, although about half of marriages in the early 21st century were still predicted to end in divorce or permanent separation, and the majority of those who divorce will remarry within 10 years."6Cohabitation before (or instead of) marriage has become much more widespread, as the percentage of younger women whose first union was cohabitation rather than marriage increased by almost 50%.7 Meanwhile, non-marital childbearing has risen dramatically since the 1960s, and today over 40% of all births occur outside marriage.8 Rising union instability (owing to high rates of cohabitation, non-marital childbearing, divorce, and re-partnering) in the context of persistent fertility rates has led to an increase in family complexity.9
3. The Jurisdiction of the Hawai'i Family Court
The Hawai'i Family Court is a "division of the Circuit Court," a Court of equity, and a court of law.10 No trial court has greater, or broader, authority than the Family Court. Besides adjudicating family law cases, the Family Court is also charged with assisting families and children in need through a variety of special programs and services. "From its beginning, the Family Court has had a complex purpose. It was constituted as a Court of law, having the rights, powers and duties of a trial Court. As such, it was intended to adjudicate cases, to resolve disputes, to enforce the laws and to dispense justice. But, it was additionally constituted to investigate and respond to the underlying causes of family distress, disruption, and crime, and to provide a means for helping families involved in such difficulties."11
4. Proceedings Adjudicated by the Hawai'i Family Court
The Family Court has the exclusive jurisdiction to legally determine 14 different types of judicial proceedings: divorce, separation and annulment proceedings (FC-D); civil union divorce, separation and annulment proceedings (FC-CU); paternity proceedings (FC-P); adoption proceedings (FC-A); guardianship proceedings (FC-G); child protection proceedings (FC-S); juvenile proceedings (FC-J); domestic abuse proceedings (FC-DA); adult protection proceedings (FC-AA); family criminal proceedings (FC-CR); interstate support proceedings (FC-UIFSA); interstate custody proceedings (FC-UCCJEA); child support appeals proceedings (FC-AP); and miscellaneous proceedings (FC-M).12
5. Family Court Programs and Services
The Family Court assists families and children in need through a variety of special programs and services.13
a. Self Help Centers The Judiciary operates its Ho'okele self-help centers in all circuits in order to assist an ever-growing volume of unrepresented litigants, especially those involved in family law matters. In nearly 65% of the almost 4,000 First Circuit divorces filed in fiscal year 2013-2014 neither party had an attorney.14 The National Center for Access to Justice has recently ranked Hawai'i in the top five states for expanding access to justice, and number one for providing service to litigants who represent themselves.15
b. Kids First The Judiciary's award-winning Kids First educational program, first established in 1997 to assist divorcing parents and their children, and expanded in 2003 to include parents and children involved in paternity proceedings, teaches children that they are not the cause of the separation of their parents, that parents do not divorce their children, and that they are not alone. Parents are provided resource materials and encouraged to seek counseling.16 Each circuit has its own special variation of the program. In fiscal year ending (FYE) June 2014, 3,867 parents and 2,243 children attended Kids First on a statewide basis.17
c. Divorce Law in Hawai'i Since January 2002 the First Circuit Family Court's "Divorce Law in Hawai'i" monthly public education program has taught couples how to fairly resolve their divorce issues in a non-adversarial manner. Program participants are invited to engage in a divorce mediation at the Mediation Center of the Pacific. Last year, on the occasion of its 150th presentation, the Hawai'i Supreme Court proclaimed August 28, 2014 "Divorce Law in Hawai'i Day."18
d. Volunteer Settlement Master Program Since 2004 the First Circuit Family Court's VSM program has assigned volunteer attorney members of the HSBA Family Law Section to help divorcing couples mediate their legal issues. The VSM process is confidential and governed by the provisions of the Hawai'i Rules of Professional Conduct and the Hawai'i Rules of Evidence. The utilization of VSMs has significantly reduced the Family Court's contested divorce caseload.19
e. Other Programs and Services The Family Court's programs and services also include Juvenile Drug Court, Family Drug Court, "Zero to Three" Court, Girls Court, Oahu Child Welfare Mediation Program, Project Visitation, Ho'olokahi Parent Facilitator Program, and Court Appointed Special Advocates (CASA). Five years ago, the Family Court, the Department of Health, the Department of Education, and the Department of Human Services developed the Wraparound Project to provide individualized comprehensive services for youth involved with multiple systems of care by better integrating and coordinating them. The strength of this approach is that it is youth- and family-focused. Two years ago, the Family Court instituted Trauma-Informed Care, a system of care which acknowledges the trauma that litigants and children have suffered and promotes approaches that provide for healing. The Family Court has also established stakeholders meeting groups for all divisions of the Family Court, a commission to address the problem of sexually exploited children, and a commission to protect LGBTQ, youth. In 2014, the Family Court added its Imua Kakou and Permanency Specialty Courts.20
6. The Family Court's Caseload
The Family Court's caseload is truly mind-boggling.
In FYE June 2014, the Family Courts collectively handled 53,269 cases, including 10,045 divorces, 7,553 cases involving juvenile law offenders, 6,915 criminal actions involving family members, 4,953 paternity cases, and 2,026 abuse and neglect cases.21
The last "Family Law Update" article appeared in the April 2007 issue of the Hawaii Bar Journal. The chart on page 6, which originally appeared in the 2007 article, reflects the total number of statewide non-juvenile Family Court filings from July 1996 through June 2006.
The chart on page 9, in the same form as the chart in the 2007 article, reflects the total number of statewide non-juvenile Family Court filings from July 2006 through June 2014.
The chart on page 12 reflects the total number of statewide juvenile Family Court filings from July 1996 through June 2014.
a. Divorce Divorce filings in Hawai'i have been on a slow decline, as they have been nationally. In FYE June 2014, there were 5,251 divorce filings, the lowest in 18 years (the high was 6,183 in FYE June 1998).22 By comparison, by some measure, national divorce rates peaked in 1979, and have fallen by about 24% since.23 Meanwhile, Hawai'i has a large military population, and in 2014, the military's divorce rate dropped again reaching its lowest point since 2005.24Over one-third of all Hawai'i divorces are filed by military personnel.25
b. Domestic Abuse Domestic abuse filings in Hawai'i are at a near all-time high, and in FYE June 2014, for the first time they exceeded divorce filings (5,295 vs. 5,251). By comparison, in FYE June 1997, there were 5,915 divorce filings compared to only 2,859 domestic abuse filings.26 On Oahu, approximately 12 % of families attending Kids First have active restraining orders.27
c. Paternity While paternity filings remain relatively constant, the...
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