Custody

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)