Custody

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