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Hawaii Child Custody Agreement

Hawaii requires a filed parenting plan only where custody is contested, and no Hawaii statute gives an agreed arrangement any particular weight with the family court.

Find out where you stand in Hawaii

Where are you with the custody arrangement?

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Introduction

Hawaii asks a narrower question than most states do, and it asks it about your case rather than about your agreement: is custody contested? HRS Section 571-46.5(a) requires that for every action that includes a contested custody of children, both parents develop either a mutually agreed-upon general parenting plan or separate individually-desired parenting plans and file at the outset of the action, and parents presenting an agreed arrangement sit outside that trigger. The court's backup powers under Section 571-46.5(d), which include ordering alternative dispute resolution and counseling and developing a detailed plan itself, are conditioned in the same way, on the parties being unable to agree. What agreeing does not change is the standard applied to what you filed. 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) directs the family court that in awarding the custody it shall be guided by the listed standards, considerations, and procedures, with no carve-out for settled cases. So agreeing in Hawaii removes obligations rather than earning deference, and the practical consequence is that your arrangement has to be written well enough to stand on its own reading.

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.

Key decisions before you file

Before you file a Child Custody Agreement in Hawaii, a few decisions shape the document: which option to choose and what each one means. The Child Custody Agreement guide walks through them.

Open the Child Custody Agreement guide

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Hawaii Child Custody Agreement (Compact State Terms)

Use these terms together with the national Child Custody Agreement template. They address requirements specific to Hawaii law and replace the corresponding general provisions.

  1. HAWAII VOCABULARY AND FORM The parents adopt the terms used in HRS 571-46 and 571-46.1. References in the national template to parenting time are read as visitation, the term chapter 571 uses. This document is the parents' mutually agreed-upon parenting plan for the purposes of HRS 571-46.5 and is submitted to the family court for entry of an order for custody.

  2. CUSTODY REQUESTED The parents ask the court to award [JOINT CUSTODY / SOLE CUSTODY TO (NAME)] of the child [CHILD NAME], born [DATE OF BIRTH]. Where joint custody is requested, legal custody is awarded to both parents and physical custody is shared pursuant to this parenting plan, as HRS 571-46.1(b) provides. Legal custody and physical custody are allocated separately and one does not follow from the other.

  3. RESIDENTIAL SCHEDULE The child shall reside according to the schedule at [SCHEDULE REFERENCE], which states where the child is on each day of the year and when each period begins and ends.

  4. HOLIDAY, BIRTHDAY, AND VACATION PLANNING Holidays, birthdays, school breaks, and vacation periods shall be spent as set out at [SCHEDULE REFERENCE]. Neither parent shall schedule travel with the child during the other parent's period without written agreement.

  5. PARENTAL DECISION-MAKING AND RESPONSIBILITY Authority over the child's education, non-emergency health care, and religious upbringing is allocated [ALLOCATION]. Each parent may make routine and emergency decisions while the child is in that parent's care. Where the child is being breastfed, the schedule shall accommodate feeding as follows: [ARRANGEMENT OR NOT APPLICABLE].

  6. INFORMATION SHARING AND COMMUNICATION Each parent shall have access to the child's education, health, and activity records and shall share [INFORMATION] within [NUMBER] days. The child may communicate with the other parent by telephone or other means [FREQUENCY AND CONDITIONS], and neither parent shall monitor or restrict that contact except as ordered by the court.

  7. RIGHT OF FIRST REFUSAL AND TRANSPORTATION Where a parent will be unavailable to care for the child for more than [NUMBER] consecutive hours during that parent's period, the other parent shall first be offered the opportunity to care for the child. Exchanges shall take place at [LOCATION], and transportation costs shall be borne [ALLOCATION].

  8. RELOCATION OF PARENTS Hawaii sets no statutory notice period, distance threshold, or objection procedure for a parent who moves, so this clause applies by agreement only. A parent intending to change residence shall give the other parent written notice at least [NUMBER] days in advance, stating the new address and the intended date of the move. Notice does not by itself change custody or visitation, which are changed only by a further order of the court.

  9. CHANGING AND ENFORCING THIS PLAN Before either parent files to change or enforce this plan, and except in an emergency involving the child's safety, the parents shall first attempt [MEDIATION / OTHER PROCEDURE]. The parents understand that this plan takes effect as a custody order only when the family court enters an order, that under HRS 571-46(a)(6) any custody award is subject to modification whenever the best interests of the child require it, and that child support is calculated separately and is not settled here.

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.

Frequently Asked Questions

Agreeing changes your paperwork rather than your legal position. HRS Section 571-46.5(a) requires a parenting plan for every action that includes a contested custody of children, so the filing duty attaches to contest rather than to the type of case, and parents who present an agreed arrangement fall outside it. Section 571-46.5(d) works the same way, conditioning the court's power to order alternative dispute resolution and counseling and to develop and file a detailed plan itself on the parties being unable to agree. What does not change is the standard: 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) directs the family court that in awarding the custody it shall be guided by the listed standards, considerations, and procedures whether the parents fought or settled.

Yes. The agreement has no independent operative force, and it becomes effective as and when the family court's order adopts it. Section 571-46(a) 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. During a divorce or separation, HRS Section 580-11 supplies the parallel power over temporary orders concerning the care, custody, education, and maintenance of the minor children, and provides that the court may enforce those orders by summary process.

The statutory duty is tied to contest. 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 agree are not within that trigger. That said, joint custody in Hawaii is defined by reference to a plan, so a parenting plan is usually the sensible form for an agreed arrangement even where filing one is not compelled, and Section 571-46.5(e) confirms that the court or the parties may revise and amend the plan from time to time.

Hawaii prescribes nothing, which is unusual for a state that requires a plan at all. Section 571-46.5(b) allows a plan that is no more than a general outline relating to parental responsibilities and parenting time, and adds that a general plan may also allow the parents to develop a more detailed agreement on an informal basis. Section 571-46.5(c) then 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. Treat those as a drafting checklist. Because they are permissive, no one of them is a filing requirement, but leaving several of them blank is how arrangements come apart later.

There are sixteen, in HRS Section 571-46(b), and the framing is 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. So the court must work through them, but the list does not exhaust what it can consider. A distinctive feature is how child centered they are, taking in the child's physical health, emotional needs, safety, educational needs, and need for relationships with siblings rather than only comparing the parents. Two factors are disabled where the court has determined that family violence has been committed by a parent: the factor on each parent's cooperation in developing and implementing a plan to meet the child's ongoing needs, and the factor on each parent's actions allowing the child to maintain family connections. These sixteen are a different list from the seventeen numbered standards, considerations, and procedures set out in Section 571-46(a).

It is defined by reference to the parenting plan. HRS Section 571-46.1(b) provides that joint custody means an order awarding legal custody of the minor child or children 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. That is why a Hawaii agreement is usually best written as a plan: the plan is part of what the award consists of. The same provision allows joint legal custody without joint physical custody, so shared decision-making and a shared residential schedule are separate choices and the document should say clearly which of them you are asking for.

Visitation. Section 571-46 uses visitation throughout, including in its own heading, and it is the term the family violence provisions in that section use as well. Parenting time appears in chapter 571 only inside Section 571-46.5(b), as one of the things a general parenting plan may outline. Using parenting time in your document is not fatal, but matching the statute makes the arrangement easier to read against the law that governs it.

There is no statutory answer, because Hawaii has no relocation statute. Neither chapter 571 nor chapter 580 has a relocation, removal, or change of residence section, so there is no notice period, no mileage threshold, no consent requirement, and no petition or objection procedure. Relocation appears in the code in only a few places, and the one that helps you is Section 571-46.5(c)(6), which lists relocation of parents as a topic a detailed parenting plan may cover. Section 571-46(a)(16)(B) separately provides that visitation by electronic communication may not be used to justify or support the relocation of a custodial parent. In practice this means the notice term you write is the only notice term you will have, so state a number of days, require the new address, and say that notice by itself does not change custody or visitation.

Hawaii runs one of the broader schemes of any state. 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, which reaches decision-making authority as well as residence. It also sets mandatory considerations once family violence is found, treating the safety and well-being of the child and of the victim parent as the primary factor, requiring the perpetrator's history of causing harm to be considered, and providing that a parent's absence or relocation caused by the other parent's family violence shall not weigh against them. Section 571-46(a)(10) permits visitation to the perpetrator only if the court finds adequate provision can be made for the physical safety and psychological well-being of the child and the safety of the victim parent, Section 571-46(a)(11) supplies the conditions the court may impose, and Section 571-46(a)(12) provides that 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. HRS Section 580-41.5 keeps an alleged victim of spousal abuse out of mediation against their wishes and restricts mediation where a protective order is in effect. Two of the sixteen best interest factors are also switched off by a family violence finding. If this is part of your situation, it is a matter for a lawyer.

No. Support is calculated under separate rules and is not resolved by the custody and visitation terms you agree on, even though the same proceeding will usually deal with both. Keep the two apart when you draft, and do not treat a residential schedule as an answer to the support question.