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)

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)

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)