A divorce with children can be stressful and emotionally draining, but if you understand the factors that influence custody decisions, you will be better prepared to face this difficult challenge.
Hawaii Custody Basics
Hawaii has enacted some general custody standards. Specifically, a judge should award custody to one or both parents if it serves the child’s best interests. In most cases, frequent and meaningful contact between the child and both parents is vital to a child’s well-being. However, in situations where custody with the parents doesn’t serve the child’s best interests, a judge may award custody to a third-party.
Hawaii recognizes both legal and physical custody. Legal custody refers to a parent’s ability to make major medical, educational, religious or other decisions on a child’s behalf. Physical custody refers to where a child lives. Parents can have joint physical and legal custody, or one parent may have sole legal and/or physical custody. Although joint custody maximizes each parent’s time and contact with the child, joint custody isn’t appropriate in every circumstance such as cases involving domestic violence or where parents have a volatile relationship.
Can Parents Make Their Own Custody Agreements?
The short answer is “yes,” but any agreement is subject to a judge’s approval. Parents can negotiate custody terms on their own or with the help of a mediator. Once the custody agreement is written down, each parent must sign the document. A judge will review the signed custody agreement to determine if it serves the child’s best interests. A judge will also examine the agreement for completeness. For example, you and your spouse can’t create a custody agreement where you decide legal custody but don’t address physical custody or visitation. If you submit an incomplete custody agreement to the court, a judge may reject it and require you to litigate custody in the courtroom.
A thorough custody agreement should cover the following:
- physical and legal custody
- holiday and summer visitation
- child exchanges
- transportation between visits
- communication when the child is in the other parent’s care
- child support, and
- medical insurance coverage.
Many local court websites publish divorce and custody forms you can use as a model for your agreement. If you are still unsure about what to include, contact a local family law attorney for advice.
How Will a Judge Decide Custody?
No single factor determines custody—a judge will consider several factors to come up with the custody arrangement that best serves a child’s needs. Specifically, courts in Hawaii will consider:
- the child’s relationship with each parent
- each parent’s history of caregiving to the child
- either parent’s history of sexual or physical abuse against a child
- either parent’s history of neglect or emotional abuse of the child
- the child’s physical needs
- the child’s emotional needs
- the child’s educational needs
- the child’s relationship with siblings
- each parent’s willingness to foster a relationship between the child and other parent
- each parent’s abilities to meet the child’s needs
- either parent’s history of substance abuse
- each parent’s mental health, and
- areas and levels of conflict present in the family.
In any case involving domestic violence, there’s a rebuttable presumption that it’s not in the child’s best interests to award custody to the abusive parent. A court can only award custody to a parent who has committed family violence if the court determines that the child’s physical and psychological safety can be preserved and that it would serve the child’s best interests.
Additionally, a child’s preference may be considered in a custody case. If the child is of a sufficient age and maturity, a judge will give due weight to a child’s wishes. A judge isn’t bound by a child’s wishes, but a court will consider those wishes as part of an overall evaluation of the child’s best interests.
When Can I Modify Custody?
You will probably undergo several changes to your child’s custody order before your child turns 18. Hawaii law allows a custody modification any time the child’s best interests require a change. Usually a parent’s remarriage, relocation, or job change alone isn’t enough to modify custody. However, when there’s a major change in circumstances affecting a parent’s circumstances and a child’s well-being, it may be time to make an adjustment.
For example, if a child was recently diagnosed with a serious medical condition, there may be reasons for the child, who was previously living in a rural setting, to move in with the metropolitan parent with better access to medical care. Also, while a parent’s relocation across town won’t necessarily justify changing custody, one parent’s relocation to a foreign country will significantly impact the child and may be reason for the court to alter visitation and/or custody. Either parent can file a motion to modify custody. A judge will evaluate many of the same factors considered in an initial custody determination, but a custody change will only be ordered if it serves the child’s best interests.