When parents separate or divorce in Hawaii, it's often difficult for everyone involved, especially children. A favored parent may want their children to get involved in a custody proceeding and express their custodial preference. However, a judge will only consider a child's preference if the child is sufficiently mature and can make an intelligent choice. Legal protections are in place to keep a parent from manipulating a child or putting a child in the middle of a custody battle.
This article provides an overview of child custody proceedings in Hawaii. If you have questions after reading this article, contact a local family law attorney for advice.
There are two types of child custody in Hawaii: physical and legal custody. “Physical custody” refers to where the child lives. A parent with physical custody lives in the same household as the child. If it serves a child's best interests, a judge may award parents shared physical, also called “joint physical custody”.
Parents with joint custody will both have substantial time with their child, but their parenting time won't necessarily be equal. For example, in a joint custody relationship one parent might have the child Monday through Thursday morning, and the other parent would have the child from Thursday after school until Sunday night. See Haw. Rev. Stat. § 571-46.1 (2020).
“Legal custody” is a parent's right to make major medical, educational, or religious decisions on the child's behalf. In most cases, a judge will order parents to share legal custody so that both parents have a say in the child's upbringing. In cases where the parents have a contentious relationship, shared legal custody might not be in a child's best interests.
Parents can reach their own custody agreements, subject to court approval. Some parents are able to negotiate a settlement agreement on their own or during a mediation session. In cases where parents can't agree, a judge will have to decide custody and visitation at trial.
In either situation, a judge will ensure that the custody arrangement meets a child's needs. Unlike many other states, Hawaii's child custody laws don't outline specific factors a judge should consider in a custody case.
Instead, a judge must assess any factor that affects a child's safety, health, and well-being. Generally, a court will look at the following factors to determine a child's best interests:
Hawaii custody laws presume that a parent who has committed family violence should not be entitled to sole or joint physical custody of a child. The law assumes that a child would not be safe in that parent's care. However, a parent can overcome that presumption by showing adequate safety measures are in place to ensure the child's safety and well-being.
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, well-reasoned decision. In certain cases, a judge will even consider the parental preference of a very young child.
Hawaii judges have broad discretion when deciding how much weight to give a child's preference. In one Hawaii case, a judge gave a preschooler's preference for her father a lot of weight because the judge determined the young child to be sufficiently mature and able to express a well-reasoned preference.
A child can also express a 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 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. For example, siblings could be split between the parents if such an arrangement would best serve their needs.
In most cases, 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. For example, a judge can appoint a licensed child expert, such as a custody evaluator or guardian ad litem, to interview the child and then report his or her findings to the court. A custody evaluator or a guardian ad litem meets with the child and parents separately and then convey the child's preference to the judge. See Haw. Rev. Stat. § 571-46.4 (2020).
Alternatively, judge may ask children of sufficient age and capacity meet with the judge in-chambers, outside of the courtroom. Parents cannot attend these in-chambers interviews, but typically attorneys and a court reporter will be present to record the child's testimony, in case it must be used in court.
Testifying in court can be stressful and traumatizing for children, so judges try to avoid putting children on the witness stand. However, a child may be asked to testify in court in an emergency situation where the child's health or safety is in immediate danger.
Your custody order is permanent until your child reaches 18 or the order is modified. Either parent can file a request to modify custody. However, a judge won't grant the request unless there's been a material change in circumstances since your last custody order, and a change in custody would serve a child's best interests. In determining whether a custody modification is appropriate, a judge will assess the same best interests factors as listed above.
If you have additional questions about the effects of a child's preference in Hawaii custody proceedings, reach out to a local family law attorney.