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Custody of the minor children. There are two (2) types of custody: legal and physical.
Legal custody determines which parent has the authority to make major decisions on behalf of the child(ren). For example, consent to medical services, obtaining a driver’s license, choosing a school, or religion.
Physical custody refers to where the child(ren) actually resides. Generally, the physical custodian is responsible for the decisions concerning the day-to-day care of the child(ren). Custody may either be solely with mom, solely with dad, or held jointly between the parties, which means both parties must cooperate. For marriages with more than one child, there is also an option for split custody, where one child is with mom, and the other child is with dad.
Visitation - Visitation may be reasonable, if for example the parties’ determine that the child(ren) should live with mom, father will have reasonable visitation, or vice versa. Typically, such visitation may be one night a week and alternating weekends from Friday after school to Sunday evening until 7 p.m. with the non-custodial parent, or as otherwise agreed upon between the parties. The visitation schedule can be customized by the parties to suit their needs and/or the needs of the child(ren), for so long as both parties are in agreement to such arrangements.
Custody and visitation are the most difficult areas for the parties to agree upon. Often the parties emotions get in the way in the child(ren)’s best interest. One side may prevent the child(ren) from seeing or spending time with the other parent. A common example would be one parent has a new love interest in their life which may cause the other parent to be difficult or uncooperative when trying to decide all of the necessary issues in regards to the child(ren).
The following are factors the court considers if the parties cannot agree which parent should have physical custody of the minor child(ren). The Court’s primary concern is the best interest of the children. If the parties cannot agree on custody, the judge will look at the items listed below in making his or her determination.
Child’s Needs - The court looks to which parent can better meet the child’s needs (food, shelter, clothing, education, supervision, protection, and health care).
Child’s Preferences - HRS 571-46(3) permits the Court, if any, to consider the wishes of the child. In most cases, the child should not, and will not, be directly asked for a preference. The child’s preference may be contained in the social study report or presented by the Guardian Ad Litem. The child must be of sufficient age and capacity to be able to form an intelligent preference before the Court will consider the child’s desires.
Parties - Parents are give priority in custody disputes in the absence of a Court order awarding custody to a person other than the parents. A person who is not a parent and who does not have a custody order must allege that the parents are not fit and proper persons and that the parents does not have a stable and wholesome homes for the child(ren). The following is a non-exclusive list of questions the Court attempts to answer when evaluating the parents:
Parent Alienation - This is parental conduct which denigrates the other parent to the child. The practitioner representing either parent needs to move very cautiously and investigate the facts carefully to try to unravel the truth of the various conflicting allegations, before leaping to any conclusions. Different courts react differently to allegations of parental alienation.
Domestic Violence - Hawaii Revises Statutes 571-46(9) states that unless, rebutted, that it is detrimental to a child and not in the child’s best interest to award custody to a perpetrator of family violence.
Definition of Family Violence - Family violence is defined as follows:
Acts of self defense are specifically excluded from the definition of family violence. Physical harm is not required to be proven to invoke the Act. Attempts to cause physical harm or placing a family or household member is fear of physical harm is enough.
Rebuttable Presumption- Act 198 creates a rebuttable presumption that placing a child in the sole custody, joint legal custody, or joint physical custody of a perpetrator of family violence is detrimental to the child and is not in the best interest of the child.
Additional Criteria - If custody of the child or visitation by a parent is at issue, and in which the Court has made a finding of family violence by a parent, the Court is required to apply the following criteria:
Considerations for Divorce with Children