Custody & Visitation FAQS
This website contains only general information and readers should not take any actions without first consulting a qualified attorney about their specific situation.
There is no definition of “legal custody” in Hawaii’s statutes or reported court decisions. By long custom and usage, lawyers in Hawaii generally use the term to refer to the ability to make major decisions concerning a child. These decisions include, by way of example, the decision to settle a lawsuit, permission to marry, permission to enlist in the armed forces, or authorization for non-emergency medical procedures where informed consent is required. When one parent has sole legal custody, that parent is authorized to make all decisions relating to the child without the involvement of the other parent. However, the other parent may still challenge a particular decision by bringing a post-divorce motion in the Family Court. “Joint” legal custody means that both parents must agree before any major decision concerning the child may be implemented. Joint legal custody is the preferred approach in most cases, but it may not be practical in cases where there is a high degree of conflict between the parents, or an inability to communicate and work cooperatively.
Physical custody is a term that indicates which parent the child lives with most of the time. The other parent gets “visitation.” These terms are unfortunate, because they are emotionally loaded and often result in a great deal of unnecessary litigation unless one parent is willing to concede physical custody to the other. Physical custody can be sole or joint. Hawaii statutory law defines joint custody as any arrangement in which the child has regular and continuing contact with both parents. Unfortunately, the Hawaii Child Support Guidelines define the term differently: Equal time with both parents. These conflicting definitions and the fact that use of the term “joint physical custody” can have unintended effects on child support are another source of unnecessary custody litigation.
There is no such thing, unless the other parent is dead. Even in a situation where one parent has sole legal and physical custody, the other parent still has rights and obligations relating to the child.
Time-sharing (also sometimes called “parenting plans”) can be highly individualized. Visitation should take into account such factors as the child’s school and activity schedules, the parents’ work schedules, other adults and children residing in each parent’s home, and transportation. Some common time sharing plans include alternating weekends with the non custodial parent, or a 4-3-3-4 split over a two week period. When one parent has the child for most of the school year, the other typically gets more time during school vacations. When parents have a significant geographical separation, a typical arrangement is two trips per year to the non-custodial parent. Depending on the age of the child, travel arrangements can be somewhat complex, but specificity written into a divorce decree can avoid unnecessary fights later.
Supervised visitation is usually ordered when one parent has a significant problem, placing the child at risk if left with that parent unless there is additional supervision. Typically these cases involve a parent who is mentally ill, is violent, is a substance abuser, is a flight risk, or is in similar situations. Supervised visitation is generally not favored as a long-term solution, and can be difficult for both parents and children.
If both parents agree, this is not a problem. When parents don’t agree, the parent who has sole legal and physical custody may relocate off-island with the child. However, unless it can be shown that the relocation was contemplated at the time of divorce, a relocation will be considered a “material change in circumstances” and the other parent will be entitled to seek a change in custody, or an order barring removal of the child from the state. In most cases, it is better for the relocating parent to first seek permission from the other parent or the court, rather than face litigation later. In a relocation case, the court will focus on whether the relocation is in the best interest of the child, not merely whether it is convenient or desirable for the relocating parent.
At the age of 18, the child becomes an adult and can live wherever he or she wishes. Short of that, there is no specific age under Hawaii law at which a child can choose his custodial parent. Hawaii statutes do provide that the “preferences” of a child of “suitable age and discretion” should be given “due weight and deference” by the court. Implementing this statutory directive is highly problematic. Most Family Court judges and practitioners believe it is damaging to a child to be asked to choose between parents.
When parents agree, it is extremely unusual for a judge to refuse to approve their agreement. However, when parents cannot agree, and the court must decide, there is no magic formula for child custody. It is important to remember that the best interest of the child is the court’s paramount consideration, and fairness to each parent is entirely secondary. Courts often try to order arrangements that are least disruptive for the child and continue established patterns. Courts will try to protect the child from parental disputes and violence, and from parents who have drug, mental health, criminal, or other lifestyle issues. Educational opportunity, environment, and parents’ desires all play a role, as do the child’s age, health, and other factors. Frequently, the court will seek input from independent investigators, therapists, or others before making a decision. Custody litigation is extremely complex and challenging, and each case turns on its own unique facts.
Interstate custody disputes are extremely complex. As a practical matter, the two judges from the two different states where custody proceedings are pending will confer and decide which state would be the best forum. Generally speaking, an initial custody determination should be made in the child’s “home state,” that is, the place where the child was last residing with a parent for a continuous six-month period at the time the action was filed. Once an initial custody determination has been made, the state that made it has continuing “exclusive jurisdiction” to modify that determination. However, a temporary “emergency” order can be made anywhere the child may be, if there is abuse or threats of abuse to a parent or the child.