§571-46.3  Grandparents' visitation
rights; petition; notice; order.  A grandparent or the grandparents of a
minor child may file a petition with the court for an order of reasonable
visitation rights.  The court may award reasonable visitation rights provided
that the following criteria are met:



(1)  This State is the home state of the child at the
time of the commencement of the proceeding; and



(2)  Reasonable visitation rights are in the best
interests of the child.



No hearing for an order of reasonable visitation
rights under this section shall be had unless each of the living parents and
the child's custodians shall have had due notice, actual or constructive, of
the allegations of the petition and of the time and place of the hearing
thereof.



An order made pursuant to this section shall be
enforceable by the court, and the court may issue other orders to carry out
these enforcement powers if in the best interests of the child. [L 1993, c 166,
§1; am L 1998, c 20, §2]



 



Rules of Court



 



  Pleadings, see Hawaii Family Court Rules, part A(III).



 



Case Notes



 



  The "best interests of the child" standard in
paragraph (2) requires the family court to give "special weight" to
(i.e., uphold a rebuttable presumption in favor of) the visitation decisions of
a custodial parent whose fitness has not been challenged; thus, the family
court erred to the extent that it relied on Troxel to invalidate this section
(2003); however, as a "harm to the child" standard was
constitutionally required and could not be read into this section without
making a substantive amendment to the statute, this section, as written, was
unconstitutional.  116 H. 323, 172 P.3d 1067.



  Article XII, §7 of the Hawaii constitution and/or §1-1 do not
authorize for native Hawaiian grandparents any more visitation rights than
§571-46(7) and this section authorize for all grandparents, native and
non-native Hawaiian.  112 H. 113 (App.), 144 P.3d 561.



  Discussed:  88 H. 68 (App.), 961 P.2d 1162.