Hawaii Child Custody Agreement

Introduction

Key Things to Know

1. 1

   In Hawaii the parenting plan duty turns on whether custody is contested. HRS Section 571-46.5(a) requires that for every action that includes a contested custody of children, both parties or both parents develop either a mutually agreed-upon general parenting plan or separate individually-desired parenting plans, and file the plan at the outset of the action. Parents who present an agreed arrangement are outside that trigger, and Section 571-46.5(d) conditions the court's backup powers, which are ordering alternative dispute resolution and counseling and developing and filing a detailed plan itself, on the parties not being able to agree on a plan. That is a difference in what you must file, not a difference in how your arrangement is judged.

2. 2

   Agreeing does not earn a Hawaii parent any deference, and the arrangement takes effect only as a court order. No provision of the Hawaii Revised Statutes gives a parental custody agreement a presumption, a ratification duty, or contractual status, and Section 571-46(a) tells the family court that in awarding the custody it shall be guided by the listed standards, considerations, and procedures, with nothing in that instruction switched off because the parents settled. Section 571-46(a) also authorizes the court to make an order for the custody of the minor child as may seem necessary or proper, during the pendency of the action, at the final hearing, or at any time during the minority of the child, so what you signed has no operative force until that order exists. Section 571-46(a)(6) adds that any custody award is subject to modification or change whenever the best interests of the child require or justify the modification or change, and Section 571-46.5(e) says the court or the parties may revise and amend the parenting plan from time to time.

3. 3

   Hawaii requires a plan in contested cases and then prescribes nothing about what goes in it. Section 571-46.5(b) says a parenting plan may include a general outline relating to parental responsibilities and parenting time, and that a general parenting plan may also allow the parents to develop a more detailed agreement on an informal basis. Section 571-46.5(c) lists ten topics a detailed plan may include, but is not limited to: the residential schedule; holiday, birthday, and vacation planning; parental decision-making and responsibility; breastfeeding, if applicable; information sharing and access; relocation of parents; telephone access and other means of communication; right of first refusal procedures; transportation; and methods for changing or enforcing the parenting plan and for resolving disputes. Those ten are permissive and illustrative rather than mandatory, which makes them a strong drafting checklist and a poor compliance list.

4. 4

   The sixteen best interest factors are mandatory to consider but open ended. Section 571-46(b) provides that in determining what constitutes the best interest of the child under this section, the court shall consider, but not be limited to, the listed factors, and a number of them are framed around the child rather than around comparing the parents, covering the child's physical health, emotional needs, safety, educational needs, and need for relationships with siblings. Two of the sixteen are switched off entirely where the court has determined that family violence has been committed by a parent: factor (5), on each parent's cooperation in developing and implementing a plan to meet the child's ongoing needs, and factor (11), on each parent's actions allowing the child to maintain family connections. Do not confuse that list with the seventeen numbered standards, considerations, and procedures in Section 571-46(a), which is a separate and largely procedural list.

5. 5

   Hawaii keeps ordinary custody vocabulary, with two details worth matching in the document. Its word for a parent's contact time is visitation, which Section 571-46 uses throughout including in its own section heading, while parenting time appears in chapter 571 only inside Section 571-46.5(b) as a subject a plan may outline. Joint custody is defined at Section 571-46.1(b) as an order awarding legal custody of the child to both parents and providing that physical custody shall be shared by the parents pursuant to a parenting plan developed under Section 571-46.5, so the plan is structurally part of what joint custody means in Hawaii, and the same provision permits joint legal custody without joint physical custody. Section 571-46(a)(2) separately creates a de facto custody concept under which a person other than a parent who has had de facto custody of the child in a stable and wholesome home and is a fit and proper person shall be entitled prima facie to an award of custody.

6. 6

   Hawaii has no relocation statute. Neither chapter 571 nor chapter 580 contains a relocation, removal, or change of residence section, so there is no notice period, no distance threshold, no consent requirement, and no objection procedure available from the code to put in your agreement. Where relocation does appear, it is not a rule about moving: Section 571-46.5(c)(6) lists relocation of parents as a topic a detailed parenting plan may cover, and Section 571-46(a)(16)(B) provides that visitation by electronic communication may not be used to justify or support the relocation of a custodial parent. Your own plan is the only place a move-away term is going to come from, so it is worth writing a notice period and an address requirement into it deliberately.

7. 7

   Hawaii's family violence presumption is unusually broad. Section 571-46(a)(9) provides that a determination by the court that family violence has been committed by a parent raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of family violence, so it reaches decision-making authority and not only where the child lives. Section 571-46(a)(10) then permits an award of visitation to that parent only if the court finds that adequate provision can be made for the physical safety and psychological well-being of the child and the safety of the parent who is a victim, Section 571-46(a)(11) lists the conditions the court may impose, and Section 571-46(a)(12) says the court may refer but shall not order an adult victim into counseling about their status as a victim as a condition of custody or visitation. Outside chapter 571, HRS Section 580-41.5 keeps an alleged victim of spousal abuse out of mediation against their wishes and restricts mediation in a custody or visitation proceeding where a protective order is in effect, which is one more reason this is a situation for a lawyer rather than a form.

Hawaii Requirements for Child Custody Agreement

• Parenting Plan Required in Contested Custody Under HRS 571-46.5(a)

  For every action that includes a contested custody of children, both parents must develop either a mutually agreed-upon general parenting plan or separate individually-desired plans and file at the outset of the action. The duty is triggered by contest, so parents presenting an agreed arrangement are outside it.

• Court Powers Where Parents Cannot Agree Under HRS 571-46.5(d)

  If the parties cannot agree on a parenting plan, the court may order alternative dispute resolution and counseling with a person experienced in child custody or parenting issues, unless there is a finding of family violence, and may develop and file a detailed parenting plan itself on a party's request.

• Permissive Plan Contents Under HRS 571-46.5(b) and (c)

  A plan may be no more than a general outline of parental responsibilities and parenting time, and the ten listed topics for a detailed plan are introduced as may include, but is not limited to. The topics are the residential schedule, holiday and birthday and vacation planning, decision-making and responsibility, breastfeeding if applicable, information sharing and access, relocation of parents, telephone and other communication, right of first refusal, transportation, and methods for changing or enforcing the plan and resolving disputes.

• Custody Awarded Under the Standards in HRS 571-46(a)

  In awarding the custody the family court shall be guided by the standards, considerations, and procedures listed in the section, and may make an order for the custody of the minor child as may seem necessary or proper during the pendency of the action, at the final hearing, or at any time during the minority of the child. Nothing in that instruction is conditioned on the parents disagreeing.

• Sixteen Best Interest Factors Under HRS 571-46(b)

  The court shall consider, but not be limited to, sixteen listed factors, many of them framed around the child's physical health, emotional needs, safety, educational needs, and relationships with siblings. Two of the sixteen are not considered where the court has determined that family violence has been committed by a parent.

• Joint Custody Definition Under HRS 571-46.1(b)

  Joint custody means an order awarding legal custody to both parents and providing that physical custody shall be shared pursuant to a parenting plan developed under 571-46.5, and joint legal custody may be awarded without joint physical custody. The document should state which is intended.

• De Facto Custody Under HRS 571-46(a)(2)

  A person other than a parent who has had de facto custody of the child in a stable and wholesome home and is a fit and proper person is entitled prima facie to an award of custody. It is the only prima facie entitlement in the section, and it does not belong to either parent.

• No Relocation Provision in HRS Chapters 571 and 580

  Hawaii has no relocation, removal, or change of residence section, so there is no notice period, distance threshold, consent requirement, or objection procedure in the code. Relocation of parents appears only as a topic a detailed parenting plan may cover under 571-46.5(c)(6), so any move-away term comes from the parents' own plan.

• Modification and Amendment Under HRS 571-46(a)(6) and 571-46.5(e)

  Any award of custody is subject to modification or change whenever the best interests of the child require or justify it, and the court or the parties may revise and amend the parenting plan from time to time. The court's revision power is stated independently of the parents'.

• Family Violence Presumption and Visitation Gate Under HRS 571-46(a)(9) to (a)(12) and HRS 580-41.5

  A determination that family violence has been committed by a parent raises a rebuttable presumption against sole custody, joint legal custody, and joint physical custody with that parent, visitation may be awarded only on a finding that adequate provision can be made for the safety of the child and the victim parent, and the court may refer but not order an adult victim into counseling as a condition of custody or visitation. Separately, an alleged victim of spousal abuse may not be required to mediate against their wishes.