§571-46 Criteria and procedure in awarding custody and visitation. In the 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 may also 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 shall make investigations and reports which 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;
(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 must 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 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 must 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. [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]
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.
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.