You should know the following essential information if you’re engaged in a Hawaiian child custody action.
- What are the Types of Child Custody in Hawaii?
- Determining Child Custody in Hawaii
- What is Hawaii’s Best Interests of the Child Standard?
- What to Know About Parenting Plans
- How Do I Modify a Hawaii Custody or Visitation Order?
- Hawaii Child Custody FAQs
What are the Types of Child Custody in Hawaii?
There are two types of custody in Hawaii.
Physical Custody
Physical custody refers to the decision of where a child lives most of the time. One parent provides the majority of the child’s food, clothing, and shelter for the child and has the majority of “overnights” during the year.
The other parent may pay child support to provide additional resources that assist with these needs. Hawaii courts prefer both parents are actively involved in raising children, so the parent who does not have primary physical custody will have visitation rights which are worked out as part of custody discussions.
Legal Custody
As the name implies, legal custody concerns who makes the major decisions regarding the child. This includes major medical, educational, and religious decisions, as well as providing consent for a driver’s permit or underage work permit, joining the military or getting married under 18. Both parents may have a say in these decisions, often spelled out in detail as part of a larger custody agreement.
Joint and Sole Custody
As part of the physical and legal custody discussions, parents and the court need to decide if one parent or both parents will be involved in these areas of the child’s life. Joint or sole custody can be complicated, depending on many factors. However, the overriding factor ultimately comes down to the child’s best interests.
Courts prefer both parents take active roles in raising children, so there must be compelling reasons why sole custody in both forms is awarded. That may be due to drug or alcohol abuse, abandonment, or other negative behaviors exhibited by one parent.
Mandatory Parenting Class
Hawaii courts require all divorcing parents with minor children to complete a mandatory parenting class before granting a divorce. Both parents must complete this requirement unless the court grants a waiver. This helps parents and children deal with the trauma of divorce and separation. Parent counseling classes can be completed conveniently online at a very reasonable cost.
Read More: What to Say (and Not to Say) to Your Children in a Divorce
Determining Child Custody in Hawaii
According to Hawaii’s divorce laws, the primary concern courts have when determining custody is creating a plan that is in the child’s best interests. This applies in all actions for divorce, separation, annulment, separate maintenance, or any other proceeding where there is custody disputes.
Before custody is finalized, the court weighs the following standards and considerations:
- A child’s relationship with each parent.
- Each parent’s physical and mental health.
- Each parent’s desire for custody.
- A parent’s willingness to put the child’s needs first.
- Both parent’s history of caring for the child.
- Both parents’ willingness to encourage a relationship between the child and the other parent.
- The child’s health, emotional, and educational needs.
- Can an agreement be put in place that allows for frequent, continuing, and meaningful contact of each parent with the child?
- Should custody be awarded to persons other than the father or mother? Any person who has had de facto custody of the child in a stable and wholesome home and is a fit and proper person shall be entitled to custody consideration.
- The child’s relationship with siblings and extended family.
- Is the child of sufficient age and capacity to reason and form an intelligent preference?
- Is there a need for an investigation and report concerning the care, welfare, and custody of any minor child of the parties? Evaluators may need to investigate and report findings to the court before deciding.
- The court may hear the testimony of any person or expert whose skill, insight, knowledge, or experience is such that the person’s or expert’s testimony is relevant to a just and reasonable custody determination.
- Reasonable visitation rights shall be awarded to parents, grandparents, siblings, and any person interested in the child’s welfare.
- Should the court appoint a guardian ad litem to represent the interests of the child?
- Is there evidence of physical abuse, emotional abuse, or domestic violence in the marriage? Is there a history of domestic violence and a reason to believe that this may happen again? A court may award visitation to a parent who has committed family violence only if the court finds that adequate provision can be made for the physical safety and psychological well-being of the child and for the safety of the parent who is a victim of family violence. This may include supervised visits, the exchange of a child only in a protected setting, and other similar precautions.
- Other factors the court deems relevant.
Hawaii judges have broad discretion when deciding how much weight to give a child’s preference. There is no specific age to consider the child’s wishes on custody in Hawaii. A child’s custodial preference can be considered at any age as long as they are able to make an independent, well-reasoned decision. Judges watch for signs that a child is coerced to make a decision.
Parents can reach their own custody agreements subject to court approval. Some parents are able to negotiate a settlement agreement or mediation session. This is a common alternative to let the court decide and involve negotiations with an impartial third-party. Some parents can 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.
What is Hawaii’s Best Interests of the Child Standard?
Although many other things are considered, the child’s best interests are always the primary deciding factor in custody cases. No single factor determines this, and judges must weigh each case individually to apply it.
They will look at the overall quality of each parent-child relationship, including instances of neglect or abuse, how involved the parent has been in the child’s life in the past, the child’s current emotional and mental health needs, and other similar variables noted above.
Read More: The Psychological Effects of Divorce on Children (and How to Help Them Cope)
What to Know About Parenting Plans
Parenting plans are detailed instructions about the physical and legal custody for each child when parents divorce or are legally separated. The more detailed the plan, the less chance there are for disagreements and confusion later. Because this is an important legal document, it’s probably a good idea to retain an experienced attorney familiar with child custody laws to help draft a plan.
In some cases, parents can create their own agreement or use a mediator, but it must follow Hawaii child custody laws and will need to be approved by the court.
At a minimum, parenting plans should contain the following:
- Physical custody, including the number of overnight visits for each parent.
- Legal custody can be split among both parents depending on specific issues
- Child support payment amounts and recourse if a parent falls behind. NOTE: You cannot withhold visitation when child support is in arrears.
- Exchanging children, including when, where, and time of day
- Transporting children for visitation and other necessary movements
- Access to records and information
- Adjustments when the children reach certain ages
- Holiday schedules and school break schedules
- Vacation and travel approval and advance notifications
- A child’s ability to communicate with both parents
- Communication for co-parents, such as having a preferred method (calls, emails, texts) and trying to avoid communicating through your children
- Contact with other family members and friends (or not)
- How are various expenses handled? These could be related to medical costs, school activities, hobbies, and recreational activities.
- Tuition costs, if any?
- Children’s use of technology and online activities
- Handling special needs for the children as they arise
- How to address child discipline and mental health issues
- Guidelines when a new partner is involved
- Grooming and dress guidelines (extreme haircuts, make-up, etc.)
- Drinking or drug use in the presence of the children
What about supervised visitation?
Supervised visitation occurs when a third party must supervise the non-custodial parent’s visitation. A third party may be a relative or a friend or possibly assigned by the courts. It may be ordered where a parent poses potential harm or cannot properly care for the child. A third party may be a relative or a friend or possibly assigned by the courts.
Read More: Want an Amicable Divorce? Try Mediation or Collaborative Divorce
How Do I Modify a Hawaii Custody or Visitation Order?
A Hawaiian child custody order is permanent until a child reaches 18 or the order is modified.
Either parent can file a request to modify custody, but a judge won’t grant the request unless there’s been a material change in circumstances since the last custody order and a change serves a child’s best interests. Material changes can mean the custodial parent wants to move, one of the parents has health, drug, abuse, or financial problems, domestic violence is taking place, or other similar situations.
A judge will assess the factors listed above to determine if a custody modification is appropriate.
Until a judge rules on a modification, you must continue to follow the custody agreement that is in place. Also, one parent cannot withhold visitation from the other unless the child faces potential harm. This applies even when a parent falls behind on alimony or child support payments.
Hawaii Child Custody FAQs
If one parent has sole physical and legal custody, does the other parent have any rights?
Yes. The end of the relationship between the adults does not mean the end of the parent-child relationship.
Unless there are extreme circumstances in the case or domestic violence is involved, a parent still has parental rights. They are entitled to a relationship with their child, the right to visit with their child, the right to have phone contact, and the right to have information about how their child is doing.
How does parental relocation impact child custody in Hawaii?
When a custodial parent wants to move with a child, the court will hold a hearing to determine what custody arrangement will best suit the child after the parent moves. Part of the hearing will include the court looking at the reasons for a parent’s move. The court will also examine whether one parent has been cooperative regarding the other parent’s visitation or if disputes have centered around the child and the parents. In all cases, the court will demand a thorough explanation of the reasons for the move.
Judges can allow the custodial parent to move with the child and provide the other parent with alternative means of visitation. This may mean longer visits over the summer and other breaks so that the non-custodial parent can maintain the relationship with the child. Hawaiian courts may also grant non-custodial parents visitation by electronic communication, like Skype or Facetime.
Sometimes, a judge may decide that it’s in the child’s best interests to stay in the current location and transfer primary custody to the non-relocating parent.
Does a child have a say in custody matters?
Hawaii does not allow children to determine where they would like to live, but a judge can consider a child’s wishes, depending on their age and ability to make a rational decision free from parental coercion.
Is third-party custody an option?
In some cases, the answer is yes. At times, a person other than the child’s biological parents will seek custody. Courts may allow this if neither parent is capable of taking care of the child.
Hawaiin courts may grant visitation to grandparents, guardians, other relatives, or any individual concerned about the child’s well-being.
Can Hawaiian courts hire an attorney or Guardian Ad Litem to represent the child?
Hawaii has statutory authority to appoint a guardian ad litem or attorney specifically to represent the child in a custody case. This person advocates for the child’s best interest and is tasked with investigating the family situation and advising the court on what child custody situation would be in the minor’s best interests.
