Can Children Express Preference in Hawaii Custody Proceedings?

Understanding a child’s custodial preference and its impact on custody in Hawaii.

When parents separate, it’s difficult for everyone involved, especially the children. Favored parents may want their children to get involved in a custody proceeding and express their custodial preferences, but whether a child can do so will depend on the laws of the state where the custody dispute is taking place.

In certain cases, a judge will consider an intelligent and emotionally-mature child’s preference. However, legal protections are in place to keep parents from manipulating a child or putting a child in the middle of his or her own custody battle.

This article provides an overview of the impact of a child’s preference on custody proceedings in Hawaii. If you have questions after reading this article,  please contact a local family law attorney for advice.

Overview of Custody Decisions in Hawaii

Parents can reach their own custody agreements, subject to court approval. But when parents can't agree, a judge will have to decide custody and create a visitation order for the family.

In Hawaii, a custody order will be based upon a child’s best interests and the following factors:

  • the child’s relationship with his or her parent
  • any history of neglect or emotional abuse of the child by his or her parent
  • any history of sexual or physical abuse of the child by his or her parent
  • each parent’s history of caring for the child, before and after separation
  • each parent’s cooperation in developing a plan to meet the child’s needs, interests and schedule
  • the child’s welfare, including his or her health, emotional, safety and educational needs
  • the child’s relationship with siblings, if any
  • each parent’s actions showing that he or she will allow the child to maintain family connections
  • each parent’s actions demonstrating that he or she is able to separate the child’s needs from his or her own
  • each parent’s past or current drug or alcohol abuse
  • each parent’s mental health
  • any areas of family conflict, and
  • any other factor the court deems relevant.

In addition, a child’s wishes may be evaluated along with the foregoing custody factors.  To learn more about custody factors and decisions in Hawaii, see  Child Custody in Hawaii: The Best Interests of the Child.

When Will Courts Consider a Child’s Preference?

In Hawaii, there is no specific age after which the court must consider the child's stated opinion on custody. Instead, a child’s custodial preference can be considered at any age, as long as he or she is able to make an independent decision. Unlike some other states, in certain cases, Hawaii will even consider the parental preference of a very young child.

Once the child's opinion has been stated, the judge must then determine how much weight to place on it. Hawaii judges have broad discretion in deciding how important the child’s inclination is, in the grand scheme of the custody decision. As a result, judges in some cases will put a lot of weight on a child’s custodial desire, while other judges won’t give a child’s preferences much consideration.

In one Hawaii case, a pre-schooler's inclination for the father was considered because the judge determined the young child to be sufficiently mature and able to judge for herself, to verbally express a preference and to reason on her own.

A child can also express his or her preference for a custodian other than the parent. A child given up for a 3-year period by her birth parents to a set of foster parents was allowed to remain with the foster parents as she requested.

A judge will also watch for signs that a child is being coerced and will only let a child who can express an independent opinion testify in a custody proceeding. In a family of more than one child, each child’s needs, interests and wishes will be considered separately.

Will My Child Have to Testify in Open Court?

Generally speaking, children don't have to testify in court to voice their opinions regarding custody. A child can express his or her custodial preference without setting foot in a courtroom.

In some cases, a judge will appoint a licensed child expert, such as a custody evaluator, to interview the child and then report his or her findings to the court. A judge can also appoint a guardian ad litem  (“GAL”), which is an agent or attorney appointed to represent the child in court. GALs meet with the child and parents separately and then convey the child's preference to the judge.

Finally, a judge may ask children of sufficient age and capacity to reason for a private meeting in the judge's chambers, outside of the courtroom. Parents cannot attend these in-chambers interviews, but a court reporter will be present to record the child's testimony, in case it must be used in court.

Because testifying in court can be traumatizing, judges try to avoid putting children on the witness stand. However, a child may be asked to testify when there is some sort of emergency that would justify it, including where the child's health or safety may be in danger.

If you have additional questions about the effects of children’s preferences in custody proceedings in Hawaii,  contact a local family law attorney for advice.

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