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Custodia
General info and definitions
What is legal and physical custody?
When the judge issues a custody order, it generally addresses these two parts of custody:
Physical custody addresses who the child will live with on a day-to-day basis. Legal custody is the right to make major decisions about your child. This generally includes decisions about issues like where your child goes to school, what kind of health care s/he receives, and what kind of religious training s/he attends.
What is joint custody?
Joint custody means you share legal and physical custody with the other parent.
Joint physical custody means that the child lives with you and the other parent according to a schedule laid out by a parenting plan. The parenting plan should allow both you and the other parent to have frequent, continuing, and meaningful contact with the child.
Joint legal custody means that you and the other parent share decision-making power about important decisions regarding the child.1
1 HI ST § 571-46.1(b)
Who can get custody and visitation
Who can get custody?
The parents of the child are entitled to have custody. If it is in the child’s best interest, someone other than the child’s mother or father can be given custody if that person:
- has been acting as the child’s caretaker (has “de facto custody”);
- is in a stable and wholesome home; and
- is fit and proper.1
1 HI ST § 571-46(a)(2)
Who can get visitation?
You can get reasonable visitation rights if:
- you are the child’s:
- grandparent;
- sibling; or
- a person who is interested in the welfare of the child; and
- granting visitation is in the child’s best interest.1
1 HI ST § 571-46(a)(7)
Can a parent who committed violence get custody?
If a judge determines that family violence has occurred, the judge should assume (“presume”) that joint custody or sole custody with the abuser is not in the best interest of the child. However, the abusive parent can try to present evidence to change the judge’s mind.1
When making a decision about custody, the judge must consider the:
- safety and well-being of the child;
- safety and well-being of the parent who is the victim of family violence; and
- abuser’s history of committing, or causing reasonable fear of, physical harm, bodily injury, or assault.1
Additionally, if a parent relocates because s/he is a victim of family violence, the judge cannot consider the victim’s relocation or absence as a negative factor when making a decision regarding custody or visitation.1
1 HI ST § 571-46(a)(9)
Can a parent who committed domestic violence get visitation?
A judge can grant an abusive parent visitation if the judge decides that there is a way to protect the:
- physical safety and psychological well-being of the child; and
- safety of the parent who is a victim of family violence.1
1 HI ST § 571-46(a)(10)
If my child was conceived due to sexual assault, can the abuser get custody or visitation?
An abuser cannot be granted custody or visitation of a child if:
- your child was conceived as the result rape or sexual against you; and
- the abuser was convicted of the crime of rape or sexual assault in any state.1
However, even if the judge does not grant an abuser custody or visitation because your child was conceived through rape or sexual assault, the judge can still order the abuser to pay child support.2
Additionally, the abuser can be granted custody or visitation if after the abuser’s conviction:
- you and the abuser live together and create an environment where you both care for and parent the child; and
- you request that a judge grant the abuser custody or visitation and the judge finds that it would be in the child’s best interest.3
1 HI ST § 571-46(a)(17)
2 HI ST § 571-46(a)(17)(B)
3 HI ST § 571-46(a)(17)(C), (a)(17)(D)
The custody process
What are the steps for filing for custody?
The specific steps for filing for custody vary, depending on your particular situation. To find out what the process will be like for you, please consult a lawyer in your area. Go to our Hawaii Finding a Lawyer page for more information.
To file for custody, you will need to write (draft) paperwork asking the court for custody. You will then need to turn in that paperwork to the court, along with money to pay a filing fee. If you cannot afford the filing fee, you may be able to request a fee waiver. Once you have turned in your paperwork and your filing fee or fee waiver, if eligible, the other party must be served with notice of the case and you will have to file proof of service in court. Then you will have an opportunity to appear in court for a hearing.1
If you and the other parent are going through a divorce, separation, annulment, separate maintenance case, or any other type of case where custody is an issue, the judge can grant a custody order while the case is pending or at the final hearing. The judge must make a custody decision by considering what would be in the child’s best interest.2
1 Hawaii Courts’ Pro Se Custody Instructions
2 HI ST § 571-46(a)
How will a judge make a decision about custody and visitation?
A judge decides custody and visitation orders according to what the judge considers to be in the child’s best interest.1 To decide what is in the best interest of the child, the judge must consider several factors, including, but not limited to:
- a parent’s history of sexual or physical abuse of any of your children;
- a parent’s history of neglect or emotional abuse of any of your children;
- the quality of the parent-child relationship;
- each parent’s history of caregiving or parenting before and after any type of marital separation or relationship ending;
- each parent’s cooperation in creating and carrying out a plan that meets the child’s needs, interests, and schedule; however, this factor will not be considered if the judge finds that one parent has committed family violence;
- the physical health needs and emotional needs of the child;
- the safety and educational needs of the child;
- the child’s need for a relationship with his/her siblings;
- each parent’s actions showing that s/he allows the child to continue a relationship with family members through family events and activities; however, this factor will not be considered if the judge finds that one parent has committed family violence;
- each parent’s actions showing that s/he separates the child’s needs from the parent’s needs;
- evidence of each parent’s past or current alcohol or drug abuse;
- each parent’s mental health;
- the reason for, and level of, conflict present within the family; and
- a parent’s prior and purposeful misuse of the protection from abuse restraining order process to gain an advantage in the custody process.2
Note: The judge cannot consider a parent’s disability as the only factor when making a decision about custody or visitation. If there is an allegation that a parent’s disability impairs his/her parenting ability, it must be proven by showing a clear connection between the disability and the alleged inability to be a good parent.3
1 HI ST § 571-46(a)(1)
2 HI ST § 571-46(b)
3 HI ST § 571-46.6
Can I change my custody order after it is issued?
The judge can change your custody order if it would be in the child’s best interest to do so. Whenever possible, the same judge that issued the original custody order will make a decision about whether to change the order.1
1 HI ST § 571-46(a)(6)
Si me mudo a otro estado, ¿puedo transferir mi caso de custodia allá?
Es posible que en algún momento se mude con sus hijos/as del estado donde se dio la orden final de custodia. Para información sobre cómo solicitar que se transfiera el caso de custodia a un nuevo estado, por favor vaya a Transferir un caso de custodia a un estado diferente, en nuestra página general de Custodia. Sin embargo, es importante tener en cuenta que es probable que necesite obtener permiso de la corte o de el/la otro/a padre/madre para mudarse de estado. Por favor hable con un/a abogado/a para asegurarse que sus planes de mudanza no violen su orden de custodia o las leyes de secuestro parental de su estado.
