How Domestic Violence Affects Child Custody in Hawaii

Learn more about domestic violence and how it may impact child custody in Hawaii.

By , Attorney · Harvard Law School
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Every year, more than 3 million children witness domestic violence in their homes. Children that witness family violence are more likely to be victims or abusers themselves as adults. For this reason, courts pay close attention to claims of domestic violence when awarding custody to parents.

This article explains how Hawaii defines domestic violence and how it affects custody decisions. If you have additional questions after reading this article, you should consult a local family law attorney for help.

Child Custody in Hawaii

In Hawaii child custody cases, judges must decide both "legal custody," and "physical custody." Legal custody refers to a parent's responsibility to make decisions affecting a child's physical, educational, and spiritual well-being. Physical custody involves a child's legal residence and visitation time with each parent.

Hawaii judges will consider all of the following factors when determining legal and physical custody:

  • quality of each parent's relationship with the child
  • each parent's history of caregiving
  • the child's physical, emotional, educational, and safety needs
  • the parent's cooperation in developing a plan to meet the child's needs, interests, and schedule
  • the child's relationship with any siblings, and where they reside
  • the child's wishes, if the child is old enough to form an opinion
  • each parent's willingness to allow the child to attend family events and activities
  • the parents' ability to separate the child's needs from their own needs
  • each parent's drug and alcohol history
  • each parent's mental health
  • family conflict in either parent's household
  • any history of sexual or physical abuse by either parent, and
  • any history of neglect or emotional abuse of a child by either parent.

What is Domestic Violence?

In Hawaii, domestic violence is defined as any of the following actions between family members, household members, or people in a dating relationship:

  • assault, bodily injury, or physical harm
  • threats of physical assault, bodily injury, or physical harm
  • extreme psychological abuse, or
  • malicious property damage.

If there is violence between people that were previously living together or previously in a dating relationship, it is also considered domestic violence.

What to Do When There is Domestic Violence

If you are experiencing domestic violence, have just experienced domestic violence, or are in fear of immediate violence, call 911 for assistance.

If you are not in immediate danger, but have experienced domestic violence in the past or fear violence in the near future, you should obtain a "Temporary Restraining Order" (TRO) from the your local family court. A TRO is a court order that prohibits your abuser from:

  • contacting, threatening, or physically abusing you or another person at your residence
  • entering or visiting your residence, or
  • taking, removing, threatening, or abusing your pet or a pet at your residence.

To get a TRO, call the nearest Adult Client Services Branch of Family Court between 7:45 a.m. and 4:15 p.m. at the phone number listed in this link. A court staff person will take your information and schedule an appointment at the family court. A judge will review your TRO request at the appointment. You should be prepared to provide information about dates of abuse, along with any documentation you have, such as medical records or police reports.

If the judge believes you've shown you are in danger, he or she will grant a TRO lasting 90 days. The court will also schedule a TRO hearing within 15 days that both you and your abuser will have to attend.

At the TRO hearing, the judge can extend the protections granted under the TRO for up to three years. If the abuser disobeys the TRO, the court will sentence that parent to between 48 hours and 12 months in jail, with a fine between $150 and $500.

The Hawaii State Coalition Against Domestic Violence also has a 24-hour hotline you may call for assistance. You can also visit the Domestic Violence Action Center website for information and other resources.

Impact of Domestic Violence on Custody Decisions

When a Hawaii judge believes a parent has committed domestic violence, he or she begins the custody case with a presumption that it's not in the child's best interests for the abusive parent to have custody. The court considers the safety and well-being of the child and abused parent as the primary factor in deciding custody.

The judge can only award custody or visitation to an abusive parent if the child and abused parent have adequate protection for their physical and psychological safety. To protect an abused parent and child, courts can take the following actions:

  • order that child exchanges happen in a protected setting, like a police station
  • order supervised visitation by another person or agency
  • order the abusive parent to complete a family violence intervention course
  • order the abusive parent to abstain from alcohol or controlled substances during the visitation and 24 hours prior to visitation
  • order the abusive parent to pay costs of supervised visitation
  • prohibit overnight visitation
  • order the abusive parent to pay a bond, returnable when the child is returned safely
  • order any other condition necessary to protect the child, abused parent, or other household member, and
  • order that the address of the child and abused parent be kept confidential.

Hawaii judges can initiate their own investigation if they believe it is necessary to determine whether a parent has committed domestic violence. The judge can appoint a child custody evaluator to research the family and prepare a report. The court can also order a physical or mental examination of the child and/or parents, by a physician, psychiatrist, or psychologist.

If a parent is absent from a child's life because of the other parent's violence, the judge won't hold that absence against the abused parent.

The court will never give visitation to a parent who has been convicted of a rape or sexual assault from which the child at issue was born.

Supervised Visitation

Judges may order supervised visitation to protect a child and abused parent from an abusive parent. If another household member supervises the visitation, the court will order conditions for visitation to protect everyone present. If a supervised visitation center oversees the visitation, a supervisor trained in security and the avoidance of family violence will be present for the entire visitation.

The court can also order "electronic visitation," or visitation that happens by videoconference such as Skype. The judge may still require that a supervisor be present for electronic visitation.

Termination of Parental Rights

A judge may terminate the parental rights of a parent who has committed serious abuse against the other parent or child. For a court to order termination of parental rights, the child must have been previously removed from the abusive parent's custody. The court must also believe that the parent will not be able to properly care for the child in the foreseeable future.

If you have other questions about domestic violence and child custody in Hawaii, contact a local family law attorney.

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