§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 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[;]



(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; and



(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.



(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]



 



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.



  Empowering Battered Women:  Changes in Domestic Violence Laws
in Hawai`i.  17 UH L. Rev. 575.



  Familial Violence and the American Criminal Justice System. 
20 UH L. Rev. 375.



 



Case Notes



 



  Welfare of child the guide in awarding custody.  6 H. 386; 11
H. 679; 29 H. 85, 88; 32 H. 479; 32 H. 608.



  Guardian, right to custody.  23 H. 241.



  Though custody undetermined as between the parents, mother
may maintain proceeding to obtain custody from relatives.  32 H. 731.



  Review of child custody order.  49 H. 20, 407 P.2d 885; 49 H.
258, 414 P.2d 82.



  Award of custody-findings of fact by family court not set
aside unless appellate court is left with definite and firm conviction that a
mistake has been made.  56 H. 51, 527 P.2d 1275.



  Best interest of child is guide in awarding custody; neither
parent has any preferred status.  56 H. 51, 527 P.2d 1275; 61 H. 352, 604 P.2d
43.



  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.



  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; 2 H. App.
24, 624 P.2d 1378.



  No conflict with chapter 587.  7 H. App. 547, 784 P.2d 873.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.



  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.