Custody in Hawaii
In Hawaii and in other jurisdictions there are two types of Hawaii child custody: legal custody and physical custody.
Hawaii Legal Custody
Legal custody is a term which describes which parent has the authority to make major legal decisions on behalf of a child. Legal decisions include choice of religion, school, where a child resides, obtaining a drivers license, consent to join the military or consent to marry before age 18. Parents can agree to share joint legal custody or the Family Court may order joint legal custody.
The court may award joint legal custody without awarding joint physical custody. Joint legal custody requires a high level of communication and functional parents. In general, joint legal custody is ordered if the parents agree on this option, but it may be ordered over the objection of either parent if there is evidence that the non-custodial parent is being excluded from a child’s life.
Hawaii Physical Custody
Physical custody depends on the primary residence of a child. There are three types of physical custody: sole physical custody, joint physical custody and split custody.
Sole physical custody is primary physical custody. Time is not split equally. A child lives with one parent more than 50% of the time. Sole physical custody is the most common type of custody. It often occurs with younger children who are pre-school age or younger or with older children where a child lives with the custodial parent during the academic week for stability. An award of sole physical custody to a parent is subject to the right of the other parent to reasonable visitation. Visitation is now often referred to as “time-sharing”. Parents are encouraged to craft a time-sharing schedule that maximizes the time a child can spend with each parent depending on the parents’ schedules and the child’s academic schedule, extracurricular activities, lessons and weekend activities.
The second type of physical custody is joint physical custody. With joint physical custody, the timeshare plan is essentially equal. Depending on the age of the child, parents can alternate weekly or craft a customized schedule.
Split custody is rare. The court would need to see a compelling justification to split the primary residence of siblings. Typically, split custody occurs in rare circumstances where the children have a significant difference in age or have bonded to different parents to a significant degree.
Visitation or Time Sharing
The term “visitation” refers to the time a child spends with the parent who does not have sole physical custody. Time-sharing is the modern equivalent of the term “visitation”. The noncustodial parent is said to have a right of reasonable visitation. In fact, it is a child’s right to have meaningful time-sharing and access to the noncustodial parent. Children in joint custody time-sharing arrangements do better psychologically and developmentally than children in sole custody situations. There are no financial conditions to the access of either parent to a child. Access and visitation is not conditioned upon payment of child support.
How Hawaii Custody is Determined
Divorcing parents in Hawaii are required to attend the Family Court’s Kids First program. At Kids First, judges, attorneys, custody evaluators and social workers stress the advantages of parents taking control of their own custody and timesharing decision. Kids are damaged in high conflict divorce and custody battles.
Of course not all parents succeed in settling custody disputes without court intervention. In those cases, the Family Court may appoint a custody evaluator to conduct an investigation and write a report to assist the court in making a custody determination.
Custody can be awarded to either parent or to both parents jointly if that is what is in the best interest of the child. If a child is of sufficient age and capacity to reason (age 14), the court may take into consideration the child’s wishes. A child will not testify in a custody proceeding or be asked to choose between parents. Instead children may be interviewed by a custody evaluator who may include the child’s wishes in the written Report to the Court.
The Family Court can modify or change an existing custody or time-sharing order if the court feels it is in the best interest of the child and there’s been a material change in circumstances since the last custody order. If the court makes a determination that a parent is a perpetrator of family violence, it raises a rebuttable presumption that it is detrimental to a child and not in the child’s best interest to be placed in the custody of the perpetrator.
The Hawaii Legislature amended the Hawaii custody statute by including a list of factors that the court must consider in determining what is in the best interests of a child.
Custody issues arise not only in divorce cases but also in paternity cases where the parents are not married and in guardianship cases.
Good parents work hard to reach an agreement to co-parent. Marriages may end. The relationship out of which a child is born may end, but parenting is forever. Attorneys who practice family law have not just a duty to their client but also to minimize the impact the divorce or custody dispute has on an innocent child. For that reason most skilled family law attorneys encourage alternative dispute resolution (ADR) which can be Mediation or Parent Counseling to craft a responsible Parenting Plan to present to the Court.
Litigation is extreme. It is the last resort. Intensive custody litigation is costly and not just financially. The end result of custody litigation can result in the complete destruction of a parenting relationship. That’s not fair to kids or parents.