Child custody in Hawaii

What the law tells the judge to look at

In the order the law lists them.

1. Any history of sexual or physical abuse of a child by a parent.Haw. Rev. Stat. § 571-46(b)(1)
2. Any history of neglect or emotional abuse of a child by a parent.Haw. Rev. Stat. § 571-46(b)(2)
3. The overall quality of the parent-child relationship.Haw. Rev. Stat. § 571-46(b)(3)
4. How each parent cared for the child before and after the parents separated.Haw. Rev. Stat. § 571-46(b)(4)
5. How each parent works with the other to make and follow a plan for the child's needs, interests, and schedule. The judge does not use this factor if a parent has committed family violence.Haw. Rev. Stat. § 571-46(b)(5)
6. The child's physical health needs.Haw. Rev. Stat. § 571-46(b)(6)
7. The child's emotional needs.Haw. Rev. Stat. § 571-46(b)(7)
8. The child's safety needs.Haw. Rev. Stat. § 571-46(b)(8)
9. The child's educational needs.Haw. Rev. Stat. § 571-46(b)(9)
10. The child's need for relationships with brothers and sisters.Haw. Rev. Stat. § 571-46(b)(10)
11. What each parent does to let the child keep family ties through family events and activities. The judge does not use this factor if a parent has committed family violence.Haw. Rev. Stat. § 571-46(b)(11)
12. What each parent does to keep the child's needs separate from the parent's own needs.Haw. Rev. Stat. § 571-46(b)(12)
13. Any past or current drug or alcohol abuse by a parent.Haw. Rev. Stat. § 571-46(b)(13)
14. The mental health of each parent.Haw. Rev. Stat. § 571-46(b)(14)
15. The kinds and levels of conflict in the family.Haw. Rev. Stat. § 571-46(b)(15)
16. Whether a parent in the past willfully misused the domestic abuse protective order process to get an advantage in a custody case. This counts only if it is proved by clear and convincing evidence and it shows the parent will not be able to cooperate with the other parent in the future. Dropping a protective order request does not, by itself, prove misuse.Haw. Rev. Stat. § 571-46(b)(16)

Other things the judge considers

• Custody goes to one parent or both, based on the child's best interests. The judge may also consider frequent, continuing, and meaningful contact of each parent with the child, unless a parent cannot act in the child's best interest.Haw. Rev. Stat. § 571-46(a)(1)
• Custody can go to someone who is not a parent if that serves the child's best interest. A fit person who has had de facto custody of the child in a stable and wholesome home is entitled prima facie to custody.Haw. Rev. Stat. § 571-46(a)(2)
• The judge must consider and give due weight to the wishes of a child who is old enough and able to form an intelligent preference.Haw. Rev. Stat. § 571-46(a)(3)
• The judge may order a custody evaluation, hear experts, and appoint a guardian ad litem for the child.Haw. Rev. Stat. § 571-46(a)(4), (5), (8)
• A parent who has been convicted of rape or sexual assault that led to the child's conception cannot get custody or visitation, with limited exceptions.Haw. Rev. Stat. § 571-46(a)(17)

What the judge may not consider

A parent's disability cannot be the only reason to deny custody or visitation. If the judge denies custody or visits to a parent with a disability, the judge must explain why in writing, and the other side must show a clear link between the disability and a parenting problem. If a parent left or moved because of family violence by the other parent, that cannot be held against the parent who left.

Joint custody

No presumption. A judge may award joint custody when either parent asks, if it is in the child's best interest. Either parent can ask the court to order an investigation to help decide.

The child's wishes

If your child is old enough and able to form an intelligent preference, the judge must consider the child's wishes and give them due weight. The law does not set an age.

Domestic violence

If the judge finds that a parent committed family violence, the law presumes it is harmful to the child and not in the child's best interest to give that parent sole custody, joint legal custody, or joint physical custody. That parent can try to overcome this with evidence. The safety of the child and of the parent who was abused comes first. The judge can allow visits by the parent who committed family violence only if the child and the other parent can be kept safe. The judge can order supervised visits, exchanges in a protected place, a violence intervention program, no alcohol or drugs before visits, no overnight visits, a bond, and keeping the child's and victim's address confidential.

Who has custody before a court order

Hawaii law does not say who has custody of a child of unmarried parents before a court order. The parent who gave birth is a legal parent. The other parent must become a legal parent, for example by signing an acknowledgment of parentage with the birth parent or by a court order. A parent-child relationship has the same legal effect whether or not the parents are married. Either parent can ask the family court for a custody order.

Establishing paternity

How

Both parents can sign a voluntary acknowledgment of parentage (called Voluntary Establishment of Paternity by Parents on Department of Health forms). It is offered at birthing hospitals, birthing centers, by midwives, at the Child Support Enforcement Agency, and at the Department of Health. It must be signed by the parent who gave birth and the other parent, with a witness. Once filed with the Department of Health, it is a legal finding of parentage, and the other parent's name goes on the birth certificate. Either signer can cancel (rescind) it within 60 days, or before the first court or agency hearing about the child, whichever comes first. After that, it can be challenged in court only for fraud, duress, or material mistake of fact, and not more than 2 years after it takes effect. If you do not sign one, you can ask the family court to decide parentage, or apply to the Child Support Enforcement Agency for help, including genetic testing.

Form

Voluntary Establishment of Paternity by Parents (acknowledgment of parentage)

Cancellation form

Rescission of Voluntary Establishment of Paternity (signed before a notary; ask the Department of Health)

Agency

Hawaii Department of Health, Office of Health Status Monitoring (Vital Records), Voluntary Establishment of Paternity Program
https://health.hawaii.gov/vitalrecords/paternity
(808) 692-7037

Changing an order

A custody order can be changed whenever the child's best interests require or justify it. When possible, the same judge who made the first order hears the request. A joint custody order can be changed or ended if the child's best interests require it, on request of one or both parents or on the court's own motion.

Law: Haw. Rev. Stat. §§ 571-46(a)(6), 571-46.1(c)

If the other parent does not follow the order

If the other parent does not follow the custody or visitation order, you can file a motion in the Family Court case asking the judge to enforce it. A person who willfully disobeys a family court order can be held in contempt of court. The judge can also change the order if that is in the child's best interest. In some cases, taking, hiding, or keeping a child against a custody order is a crime (custodial interference).

Law: Haw. Rev. Stat. §§ 571-46(a)(6), 571-81, 707-726, 707-727

Grandparent visitation

Yes, in limited cases. A grandparent can file a petition for reasonable visitation only if: Hawaii is the child's home state; the grandparent's own child (the child's parent) cannot visit because that parent is in prison or has died; and denying visits would cause significant harm to the child. The law presumes that the parent's or custodian's decision about visits is in the child's best interest. The grandparent must prove significant harm by clear and convincing evidence. All living parents and custodians must get notice before the hearing. In a pending custody case, the judge can also give reasonable visitation to grandparents, brothers and sisters, or others interested in the child's welfare, unless visits would harm the child.

Custody by someone who is not a parent

A judge can give custody to someone who is not a parent when that serves the child's best interest. A fit person who has had de facto custody of the child in a stable and wholesome home is entitled prima facie to custody.

Custody and visitation in the order

Yes, at the protective order stage. After the hearing, the protective order can include orders for temporary custody and visitation of the parties' children, and orders to attend domestic violence intervention services. The temporary restraining order granted before the hearing covers contact and staying away, not custody. A later divorce or custody order can replace parts of the protective order.