Deciding Custody

16 Factors the Family Court Considers in Deciding Custody Issues

The criteria used by the court in awarding child custody and visitation are set forth in Section 571-46 of the Hawaii Revised Statutes. At any time before a divorce or at the time of the divorce the Family Court may make an order for the custody of a minor child. The Court has the discretion to award custody to either parent or to both parents jointly.

The basis for all custody determinations is the “best interests of the child.” In 2008 the Hawaii Legislature changed the custody statute to add 16 factors that the Family Court must consider in making custody decisions:

In determining what constitutes the best interest of the child 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…
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…
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 willful misuse of the protection from abuse process (domestic violence) commonly referred to a TRO to gain a tactical advantage in any proceeding involving the custody determination of a minor.

After a divorce, the Family Court can change custody or the visitation schedule if the Court believes the modification is in the best interests of the child.