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EspañolWhat 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)
If I move to a new state, can I transfer my child custody case there?
After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.
