Residual parental rights and responsibilities are the rights and responsibilities that one of the parents continues to have after legal custody or guardianship of the child has been transferred. If you have been granted legal custody, for example, it’s possible that the other parent still has some or all of the following rights and responsibilities:

• the right to reasonable visitation;
• the right to consent to adoption or marriage; and
• the responsibility to support the child.¹

¹ Haw. Rev. Stat. § 571-2

Meaningful contact means things a parent and a child do together to build their attachment and support their relationship. These activities should contribute to the child’s development in a positive and effective way.¹

¹ Haw. Rev. Stat. § 571-2

Generally, one or both parents of a child have the right to custody. The only way someone other than a parent can get custody is if the judge finds that:

1. it’s in the child’s best interests to give custody to a non-parent; and
2. the non-parent:

• has “de facto custody,” which means s/he has already been acting as the child’s caretaker;
• lives in a “stable and wholesome” home; and
• is a “fit and proper” person to have custody.¹

¹ Haw. Rev. Stat. § 571-46(a)(2)

If a judge determines that a parent has committed an act of family violence, there is a “rebuttable presumption” against the abusive parent getting custody. This means that the judge should assume (“presume”) that neither of the following arrangements would be in the child’s best interests:

• joint custody; or
• sole custody with the abuser.¹

However, the abusive parent can present evidence to try to change the judge’s mind.¹

When the judge is making custody decisions, s/he must consider:

• the safety and well-being of both the child and the parent who is the victim of family violence; and
• the abuser’s history of committing physical harm, bodily injury, or assault, along with any history of causing you to reasonably fear that s/he will do any of those things to you.¹

Additionally, if a parent relocates because s/he is a victim of family violence, the judge cannot hold the victim’s relocation or absence against him/her.¹

¹ Haw. Rev. Stat. § 571-46(a)(9)

In most cases, an abuser cannot be granted custody or visitation if both of the following are true:

• The abuser was found guilty (criminally convicted) of rape or sexual assault in any state; and
• You became pregnant (conceived) as a result of that rape or sexual assault.¹

The abuser can only be granted custody or visitation if both of the following things happen after the abuser’s conviction:

• You and the abuser live together and create an environment where you both care for and parent your child; and
• You ask a judge to grant the abuser custody or visitation, and the judge finds that it would be in the child’s best interest.²

Note: The judge can still order the abuser to pay child support, even if custody and visitation are denied.³

¹ Haw. Rev. Stat. § 571-46(a)(17)
² Haw. Rev. Stat. § 571-46(a)(17)(C), (a)(17)(D) 
³ Haw. Rev. Stat. § 571-46(a)(17)(A), (a)(17)(B)

A judge creates custody and visitation schedules based on what s/he believes is in a child’s best interests.¹ Hawai‘i’s law outlines a number of best interest factors for a judge to consider. These factors include, but are not limited to:

1. a parent’s history of sexually or physically abusing any child;
2. a parent’s history of neglecting or emotionally abusing any child;
3. the quality of the parent-child relationship;
4. each parent’s history of caregiving or parenting the child before and after the relationship between the parents ended;
5. the child’s physical, emotional, safety, and educational needs;
6. the child’s need for a relationship with his/her siblings;
7. each parent’s actions showing that s/he can separate the child’s needs from his/her own needs;
8. any evidence of each parent’s past or current alcohol or drug abuse;
9. each parent’s mental health;
10. the reasons for, and level of, conflict present within the family; and
11. if it has not been proven that one parent has committed family violence against the other parent, the judge will also consider:
    
    1. each parent’s cooperation in creating and carrying out a plan that meets the child’s needs, interests, and schedule; and
    2. each parent’s actions showing that s/he allows the child to continue a relationship with family members through family events and activities.²

The judge will also consider whether a parent has purposefully misused the protection from abuse process to try to gain an advantage in the custody process. However, the fact that a parent has chosen to dismiss a petition for a domestic abuse protective order is not enough on its own to prove that s/he has misused the process.

The judge cannot consider a parent’s disability as the only factor in his/her decision about custody or visitation. If the other parent says that your disability limits your parenting ability, s/he will need to prove it. S/he will have to present evidence showing a clear connection between:

• the disability; and
• the claim that you cannot be a good parent.³

¹ Haw. Rev. Stat. § 571-46(a)(1)
² Haw. Rev. Stat. § 571-46(b)
³ Haw. Rev. Stat. § 571-46.6

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 a transfer of your custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page.

Keep in mind that parents often need to get permission from the judge or from the other parent to move their children out of state. Please talk to a lawyer before you leave the state. It’s important to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.

Before you file for custody, you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of joint custody order after a settlement or trial.

However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.

Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.

You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about Safety Issues on our Court System Basics page. 

In the following sections, we will discuss the steps that generally take place during the custody process. For more information on how this process works in your county and state, you may want to contact a local lawyer.

The legal paperwork that starts a custody case is usually called a petition. You may file your custody petition in family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives.

As you can see in the chart below, the exact petition you file may depend on whether or not you are married to the child’s other parent.

Sometimes, non-parents can also file for custody or visitation rights. To find out about filing as a non-parent, talk to a lawyer.

The custody petition forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our Hawai‘i Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.

Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for a restraining order and get temporary custody as part of the restraining order.

After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.

There are two different ways that you might be able to get a final custody order – by coming to an agreement, or by going to trial.

Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.

Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.