Do Grandparents Have Visitation Rights in Hawaii?

Divorce, separation, or one parent's death can affect a grandparent's relationship with a grandchildren, especially if the surviving parent tries to limit their time together. This article explains when and how grandparents can request court-ordered visitation with their grandchildren in Hawaii.

Do I Have a Legal Right to Grandparent Visitation?

In Hawaii, grandparents have a legal right to ask the court for reasonable visitation with their grandchildren, before or after divorce, separation, or one parent's death.

What Must I Prove in Court?

Hawaii's grandparent visitation laws are in flux, and the specifics of what you must prove may change as new requirements are passed. Under the current laws, you must show:

• Hawaii is your grandchild's "home state" (established residence), and
• spending time with you is in the child's "best interest" (general welfare).

Courts will give great weight to parents' preferences regarding who gets to visit their children. And if one parent has sole custody, any proposed visitation schedule must not interfere with the other parent's time.

When making its decision, the court will consider evidence related to the child's general welfare, such as:

• any history of sexual or physical abuse
• any history of neglect or emotional abuse
• any history of the grandparents parenting the child or providing regular child care
• the child's physical and emotional health
• the child's educational and safety needs
• the child's relationship with siblings
• the grandparents' mental health, and
• the grandparents' past or current drug or alcohol abuse.

In addition, a court may appoint a child custody evaluator to investigate each parent's or grandparent's willingness and ability to meet the child's needs, interests, and schedule. Anyone familiar with the child's physical, mental, and spiritual wellbeing can offer testimony to help the court select the most appropriate custody or visitation arrangement. And in Hawaii, family court judges must consider an older child's wishes. So if an older child wants to spend time with his or her grandparents, the court would have to take that into account when making its decision.

How do I Start the Process?

You must file a "petition," (formal written request) in the court making custody and visitation orders regarding your grandchild. In your petition, you will describe your proposed schedule for court-ordered time. Once you've filed your request, you must also notify everyone involved, including the child's parents and anyone else that may have filed for custody.

If you already have a visitation order, but you want more time or the child's parent is interfering with your visits, you can ask the court to "modify" (change) it, or enforce the order.

Do I Have Rights If My Grandchild Is Adopted?

Adoption transfers all legal rights from a child's biological parents and relatives to the adoptive parents and family. If your grandchild's parents put the child up for adoption with another family, your grandparent visitation rights will be terminated and transferred to the adoptive grandparents. However, you may still be able to ask for custody or guardianship as a non-relative concerned about the child's welfare.

How do I get Custody or Guardianship of My Grandchild?

Hawaii courts will consider awarding custody to a non-parent if doing so is in a child's best interest. Anyone–a grandparent, stepparent, or non-relative—can ask the court for custody by proving the natural or legal parents are unfit. In order to show that a parent is unfit, you would need to convince a judge that living with them would be harmful because they are unable to provide the child with a safe and supportive living environment. If you can establish that the child's parents are unfit, then you must also demonstrate that living with you would be in the child's best interests.

Similarly, anyone can ask to be appointed as a temporary guardian if the child's parents consent or their legal rights have been terminated. Guardianship is also available if the parents are unable to care for their child because they are incarcerated, incapacitated, or otherwise unwilling to maintain their role as primary caretakers.

A proposed guardian does not need to prove the child's parents are unfit, because guardianship is always subject to termination if the court determines the natural parents are able to resume their parenting roles.

If you have questions about your right to spend time with your grandchild, you should speak to a local, experienced family law attorney, who can help you navigate this process.