§571-46 Criteria and procedure in awarding custody and visitation; best interest of the child. (a) In actions for divorce, separation, annulment, separate maintenance, or any other proceeding where there is at issue a dispute as to the custody of a minor child, the court, during the pendency of the action, at the final hearing, or any time during the minority of the child, may make an order for the custody of the minor child as may seem necessary or proper. In awarding the custody, the court shall be guided by the following standards, considerations, and procedures:
(1) Custody should be awarded to either parent or to both parents according to the best interests of the child, and the court also may consider frequent, continuing, and meaningful contact of each parent with the child unless the court finds that a parent is unable to act in the best interest of the child;
(2) Custody may be awarded to persons other than the father or mother whenever the award serves the best interest of the child. 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 prima facie to an award of custody;
(3) If a child is of sufficient age and capacity to reason, so as to form an intelligent preference, the child's wishes as to custody shall be considered and be given due weight by the court;
(4) Whenever good cause appears therefor, the court may require an investigation and report concerning the care, welfare, and custody of any minor child of the parties. When so directed by the court, investigators or professional personnel attached to or assisting the court, hereinafter referred to as child custody evaluators, shall make investigations and reports that shall be made available to all interested parties and counsel before hearing, and the reports may be received in evidence if no objection is made and, if objection is made, may be received in evidence; provided the person or persons responsible for the report are available for cross-examination as to any matter that has been investigated; and provided further that the court shall define, in accordance with section 571-46.4, the requirements to be a court-appointed child custody evaluator, the standards of practice, ethics, policies, and procedures required of court-appointed child custody evaluators in the performance of their duties for all courts, and the powers of the courts over child custody evaluators to effectuate the best interests of a child in a contested custody dispute pursuant to this section. Where there is no child custody evaluator available that meets the requirements and standards, or any child custody evaluator to serve indigent parties, the court may appoint a person otherwise willing and available in accordance with section 571-46.4;
(5) The court may hear the testimony of any person or expert, produced by any party or upon the court's own motion, whose skill, insight, knowledge, or experience is such that the person's or expert's testimony is relevant to a just and reasonable determination of what is for the best physical, mental, moral, and spiritual well-being of the child whose custody is at issue;
(6) Any custody award shall be subject to modification or change whenever the best interests of the child require or justify the modification or change and, wherever practicable, the same person who made the original order shall hear the motion or petition for modification of the prior award;
(7) Reasonable visitation rights shall be awarded to parents, grandparents, siblings, and any person interested in the welfare of the child in the discretion of the court, unless it is shown that rights of visitation are detrimental to the best interests of the child;
(8) The court may appoint a guardian ad litem to represent the interests of the child and may assess the reasonable fees and expenses of the guardian ad litem as costs of the action, payable in whole or in part by either or both parties as the circumstances may justify;
(9) In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that family violence has been committed by a parent raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence. In addition to other factors that a court shall consider in a proceeding in which the custody of a child or visitation by a parent is at issue, and in which the court has made a finding of family violence by a parent:
(A) The court shall consider as the primary factor the safety and well-being of the child and of the parent who is the victim of family violence;
(B) The court shall consider the perpetrator's history of causing physical harm, bodily injury, or assault or causing reasonable fear of physical harm, bodily injury, or assault to another person; and
(C) If a parent is absent or relocates because of an act of family violence by the other parent, the absence or relocation shall not be a factor that weighs against the parent in determining custody or visitation;
(10) 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;
(11) In a visitation order, a court may:
(A) Order an exchange of a child to occur in a protected setting;
(B) Order visitation supervised by another person or agency;
(C) Order the perpetrator of family violence to attend and complete, to the satisfaction of the court, a program of intervention for perpetrators or other designated counseling as a condition of the visitation;
(D) Order the perpetrator of family violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and for twenty-four hours preceding the visitation;
(E) Order the perpetrator of family violence to pay a fee to defray the costs of supervised visitation;
(F) Prohibit overnight visitation;
(G) Require a bond from the perpetrator of family violence for the return and safety of the child. In determining the amount of the bond, the court shall consider the financial circumstances of the perpetrator of family violence;
(H) Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of family violence, or other family or household member; and
(I) Order the address of the child and the victim to be kept confidential;
(12) The court may refer but shall not order an adult who is a victim of family violence to attend, either individually or with the perpetrator of the family violence, counseling relating to the victim's status or behavior as a victim as a condition of receiving custody of a child or as a condition of visitation;
(13) If a court allows a family or household member to supervise visitation, the court shall establish conditions to be followed during visitation;
(14) A supervised visitation center shall provide a secure setting and specialized procedures for supervised visitation and the transfer of children for visitation and supervision by a person trained in security and the avoidance of family violence;
(15) The court may include in visitation awarded pursuant to this section visitation by electronic communication provided that the court shall additionally consider the potential for abuse or misuse of the electronic communication, including the equipment used for the communication, by the person seeking visitation or by persons who may be present during the visitation or have access to the communication or equipment; whether the person seeking visitation has previously violated a temporary restraining order or protective order; and whether adequate provision can be made for the physical safety and psychological well-being of the child and for the safety of the custodial parent;
(16) The court may set conditions for visitation by electronic communication under paragraph (15), including visitation supervised by another person or occurring in a protected setting. Visitation by electronic communication shall not be used to:
(A) Replace or substitute an award of custody or physical visitation except where:
(i) Circumstances exist that make a parent seeking visitation unable to participate in physical visitation, including military deployment; or
(ii) Physical visitation may subject the child to physical or extreme psychological harm; or
(B) Justify or support the relocation of a custodial parent; and
(17) Notwithstanding any provision to the contrary, no natural parent shall be granted custody of or visitation with a child if the natural parent has been convicted in a court of competent jurisdiction in any state of rape or sexual assault and the child was conceived as a result of that offense; provided that:
(A) A denial of custody or visitation under this paragraph shall not affect the obligation of the convicted natural parent to support the child;
(B) The court may order the convicted natural parent to pay child support;
(C) This paragraph shall not apply if subsequent to the date of conviction, the convicted natural parent and custodial natural parent cohabitate and establish a mutual custodial environment for the child; and
(D) A custodial natural parent may petition the court to grant the convicted natural parent custody and visitation denied pursuant to this paragraph, and upon such petition the court may grant custody and visitation to the convicted natural parent where it is in the best interest of the child.
(b) In determining what constitutes the best interest of the child under this section, the court shall consider, but not be limited to, the following:
(1) Any history of sexual or physical abuse of a child by a parent;
(2) Any history of neglect or emotional abuse of a child by a parent;
(3) The overall quality of the parent-child relationship;
(4) The history of caregiving or parenting by each parent prior and subsequent to a marital or other type of separation;
(5) Each parent's cooperation in developing and implementing a plan to meet the child's ongoing needs, interests, and schedule; provided that this factor shall not be considered in any case where the court has determined that family violence has been committed by a parent;
(6) The physical health needs of the child;
(7) The emotional needs of the child;
(8) The safety needs of the child;
(9) The educational needs of the child;
(10) The child's need for relationships with siblings;
(11) Each parent's actions demonstrating that they allow the child to maintain family connections through family events and activities; provided that this factor shall not be considered in any case where the court has determined that family violence has been committed by a parent;
(12) Each parent's actions demonstrating that they separate the child's needs from the parent's needs;
(13) Any evidence of past or current drug or alcohol abuse by a parent;
(14) The mental health of each parent;
(15) The areas and levels of conflict present within the family; and
(16) A parent's prior wilful misuse of the protection from abuse process under chapter 586 to gain a tactical advantage in any proceeding involving the custody determination of a minor. Such wilful misuse may be considered only if it is established by clear and convincing evidence, and if it is further found by clear and convincing evidence that in the particular family circumstance the wilful misuse tends to show that, in the future, the parent who engaged in the wilful misuse will not be able to cooperate successfully with the other parent in their shared responsibilities for the child. The court shall articulate findings of fact whenever relying upon this factor as part of its determination of the best interests of the child. For the purposes of this section, when taken alone, the voluntary dismissal of a petition for protection from abuse shall not be treated as prima facie evidence that a wilful misuse of the protection from abuse process has occurred. [L 1965, c 83, §1; Supp, §333-23.5; am L 1967, c 56, §4; HRS §571-46; am L 1980, c 52, §3; am L 1984, c 274, §1; gen ch 1985; am L 1989, c 132, §1; am L 1993, c 228, §2; am L 1996, c 198, §3; am L 1999, c 201, §1; am L 2002, c 78, §1; am L 2005, c 244, §2; am L 2008, c 114, §2 and c 149, §2; am L 2011, c 191, §2; am L 2013, c 103, §3 and c 253, §2]
Cross References
Guardian ad litem, see §551-2.
Rules of Court
Guardians ad litem, see HFCR rule 17(c).
Law Journals and Reviews
An Essay in Family Law: Property Division, Alimony, Child Support, and Child Custody. 6 UH L. Rev. 381 (1984).
Empowering Battered Women: Changes in Domestic Violence Laws in Hawai`i. 17 UH L. Rev. 575 (1995).
Familial Violence and the American Criminal Justice System. 20 UH L. Rev. 375 (1998).
Case Notes
Welfare of child the guide in awarding custody. 6 H. 386 (1883); 11 H. 679 (1899); 29 H. 85, 88 (1926); 32 H. 479 (1932); 32 H. 608 (1933).
Guardian, right to custody. 23 H. 241 (1916).
Though custody undetermined as between the parents, mother may maintain proceeding to obtain custody from relatives. 32 H. 731 (1933).
Review of child custody order. 49 H. 20, 407 P.2d 885 (1965); 49 H. 258, 414 P.2d 82 (1966).
Award of custody-findings of fact by family court not set aside unless appellate court is left with defnite and firm conviction that a mistake has been made. 56 H. 51, 527 P.2d 1275 (1974).
Best interest of child is guide in awarding custody; neither parent has any preferred status. 56 H. 51, 527 P.2d 1275 (1974); 61 H. 352, 604 P.2d 43 (1979).
Under this section, the sole issue in a custody determination is the child's best interests, which is an issue of ultimate fact; thus, appeals court did not err in upholding family court's custody award where record indicated that family court had substantial evidence upon which it based its determination that relocation was in the best interests of the children. 111 H. 41, 137 P.3d 355 (2006).
Where family court's strict enforcement of a three-hour time limit for trial on a petition to determine custody over minor children unduly curtailed mother's ability to present evidence relevant to the proper determination of the children's best interests, the family court abused its discretion in denying mother's motion for additional trial time; the time limit unreasonably deprived mother of a fair opportunity to present mother's case and prevented the family court from being able to determine the best interests of the children. 134 H. 221, 339 P.3d 719 (2014).
In award of custody, unless there has been manifest abuse of discretion, decision will not be set aside. 61 H. 352, 604 P.2d 43 (1979); 2 H. App. 24, 624 P.2d 1378 (1981).
No conflict with chapter 587. 7 H. App. 547, 784 P.2d 873 (1989).
Upon termination of grandparents' temporary guardianship of a minor child, a request for physical custody of the child by the child's parents must be granted unless the grandparents allege, in good faith, that both parents are not fit and proper or cannot provide a home that is stable and wholesome. 7 H. App. 575, 786 P.2d 519 (1990).
Family court had power to award sole legal and physical custody of child to mother subject to condition that award will automatically terminate prior to mother's plans to move outside of court's jurisdiction. 8 H. App. 139, 794 P.2d 268 (1990).
Best interests of child constituted sole consideration in deciding father's request for order transferring physical custody of minor child from maternal grandfather to father, where grandfather's physical custody of child had been made pursuant to valid stipulated custody order. 9 H. App. 16, 819 P.2d 1130 (1991).
On issue of whether court's allowance of withdrawal of consent to adoption under §578-2(f) will be for the child's best interest, paragraph (1) and §587-1 do not apply. 85 H. 165 (App.), 938 P.2d 1184 (1997).
It is within family court's discretion to order custodial parent to pay all or part of interstate transportation expenses incurred by children when visiting noncustodial parent if order can be complied with without decreasing funds reasonably necessary to support children and custodial parent at relevant standard of living. 87 H. 369 (App.), 956 P.2d 1301 (1998).
In paragraph (7), the term "shall", when used with the phrase "in the discretion of the court", signifies that reasonable visitation rights are to be granted subject to the court's properly exercised discretion. 88 H. 68 (App.), 961 P.2d 1162 (1998).
Paragraph (7) does not limit a family court's discretion to deny rights of visitation only in the instance where a detriment to the best interests of the child has been demonstrated. 88 H. 68 (App.), 961 P.2d 1162 (1998).
Under paragraph (7), it is within family court's discretion to evaluate the effect of awarding visitation rights to grandparents on the visitation rights of a non-custodial parent. 88 H. 68 (App.), 961 P.2d 1162 (1998).
Paragraph (9) presumption that it would be detrimental to the child and not in the best interest of the child to be placed in custody with the perpetrator of family violence may be rebutted by the introduction of any evidence which would support a finding of the presumption's nonexistence. 88 H. 200 (App.), 965 P.2d 133 (1998).
The term "family violence" in paragraph (9) (1993) does not extend to the type of physical discipline of a child by his or her parent that is expressly permitted in §703-309(1); the limits on the use of physical force as a disciplinary measure in §703-309(1) adequately served to guide the family court's application of paragraph (9) (1993) in determining the best interests of the child when awarding custody or visitation. 88 H. 200 (App.), 965 P.2d 133 (1998).
In a proceeding brought by a parent to remove a non-parent as a guardian of the parent's minor child, the family court must consider the preference granted to parents in paragraph (1) in determining whether under §560:5-212, it is in the best interest of the child to terminate the guardianship. 93 H. 374 (App.), 4 P.3d 508 (2000).
Article XII, §7 of the Hawaii constitution and/or §1-1 do not authorize for native Hawaiian grandparents any more visitation rights than paragraph (7) and §571-46.3 authorize for all grandparents, native and non-native Hawaiian. 112 H. 113 (App.), 144 P.3d 561 (2006).
In a divorce case, the family court is not authorized by statute or otherwise to delegate its decision-making authority to a guardian ad litem. 112 H. 511 (App.), 147 P.3d 67 (2006).
In a divorce case, when the family court awards one person "sole legal and sole physical custody of" a child, the family court is not authorized to enter additional orders as if it was the legal and physical custodian of that child; it must allow that custodial person the decision-making authority exercisable by the person who has been awarded the sole legal and physical custody of that child. 112 H. 511 (App.), 147 P.3d 67 (2006).
In a divorce case, when the family court orders that one parent "shall have only supervised visitation with" a child, it must be as specific as is reasonably possible regarding the details such as the supervisor(s), the place(s), the day(s) and time(s). 112 H. 511 (App.), 147 P.3d 67 (2006).
There is no infringement on parents' constitutionally protected liberty interest in the right to direct the upbringing of their children when a court, properly interposed between two parents, each equally vested with such rights, resolves an impasse between them regarding the exercise of those rights; in resolving such an impasse, a family court is required to base its determination on the best interests of the child pursuant to this section. 133 H. 415 (App.), 329 P.3d 320 (2014).
Where joint custodial parents are deadlocked regarding an important decision implicating their child's future or welfare, such an impasse qualifies as a material change in circumstances sufficient to warrant the family court's consideration of a change in the custody order's terms with respect to the deadlocked matter. 133 H. 415 (App.), 329 P.3d 320 (2014).
Where joint custodial parents were at an impasse regarding which school to send their child to, the family court erred in failing to consider father's objections to the proposed school's religious instruction and admission policies when it considered the best interests of the child. 133 H. 415 (App.), 329 P.3d 320 (2014).