Child Custody
Establishing Custody & Visitation
When your divorce concludes, both your life and your children’s lives will change significantly. Among the most challenging aspects of divorce are child custody and visitation. In Hawai'i, decisions regarding child custody and visitation are made based on the best interests of the child. This principle means that custody is determined not to reward or punish a parent but to ensure the child's well-being.
There are two key types of custody to consider: physical custody and legal custody. Physical custody pertains to where the child will live, while legal custody involves who will make important decisions about the child’s upbringing.
Parents can certainly reach their own custody arrangement, which must be approved by the court. Often, these agreements are achieved with the help of attorneys through mediation—a process conducted outside of court to facilitate an agreement without judicial involvement. It is generally in everyone's best interest, especially the children’s, for parents to collaboratively reach a custody arrangement.
However, if parents cannot agree, a judge will decide custody and visitation matters at trial. In either scenario, the Family Court Judge will only sign an order once they are confident that the arrangement serves the child's best interests.
In doing so, a judge must assess any factor that affects a child's safety, health, and well-being. Generally, a court will look at the following factors to determine a child's best interests:
• The child's relationship each parent.
• Each parent's physical and mental health.
• Each parent's desire for custody.
• Each parent's willingness to put the child's needs first
• Each parent's history of caring for the child
• Each parent's willingness to encourage a relationship between the child and the other parent.
• The child's health, emotional, and educational needs.
• A child's wishes if of a sufficient age, intelligence, and maturity.
• The child's relationship with siblings and extended family.
• Each parent's past or current drug or alcohol abuse.
• Either parent's history of domestic violence, and
• Any other factor the court deems relevant. See Haw. Rev. Stat. § 571-46 (2020).
Definitions Related to Child Custody:
• Physical custody orders dictate the timesharing schedule in terms of when, and how long, the child is physically with each respective parent. Physical custody is often the type of custody which most parents are concerned about when going to court. Physical custody orders can tale the form of SOLE custody to one parent, JOINT or SHARED between the parents, and everything in between. If one parent is granted sole physical custody, the other parent is normally said to have visitation or timesharing with the child. Physical custody orders are a major factor, and largely dictate who, and how much, each respective parent will pay in child support.
• Legal custody orders dictate how major decisions regarding the child are made, and also who gets to make them. Generally, this involves major medical, educational, extracurricular and religious decisions for the child. Common legal custody issues involve vaccinations, therapy for the child, consent for a driver’s permit, joining the military, getting married under 18, or an underage work permit. Legal custody can be sole (one parent makes all the decisions) or joint (both parents make the decisions together). Legal custody does not affect child support, as child support is dictated by the timesharing orders, specifically overnights.
• Child Support is often one of the most contentious issues which parents experience in a divorce. Child support orders dictate each parents' respective obligation to pay for the necessary support and maintenance of their child, and these orders will include both the financial and medical support obligations of each parent. Child support takes into account the gross income of each parent, the number of children, the number of overnights the child spends with each parent, and also how much each parent contributes to childcare and medical, out of pocket expenses. Generally, if one parent has sole physical custody the other parent pays child support. When there is equal timesharing, the parent with the higher gross income will generally pay child support to the parent who makes less income. There are pre-determined child support guidelines which actually dictate the financial obligation of each parent.
Other situations regarding child custody
If you are facing a divorce and have children, determining their future living arrangements is crucial and will be outlined in your legal and physical custody orders within the divorce decree. At Case Lombardi, our experienced family law attorneys are dedicated to ensuring that these orders prioritize the best interests of your children. We approach each case with compassion, tenacity, and integrity.
While a divorce can be stressful, the well-being of your children makes the process even more challenging. Change can be particularly daunting for children, and we understand the importance of ensuring their safety and security. If you need assistance with custody matters, we are here to advocate for you and your children with unwavering support.