In the course of a divorce or paternity case, each parent’s responsibilities and right to time with the children can become very complicated. In order to better understand the circumstances of a family, a judge may decide to order a custody evaluation through the assistance of a third-party expert to determine what custody arrangement is in the best interest of the children.

Through the custody evaluation process, this expert evaluates the circumstances for the child or children involved and recommend a custody and timesharing arrangement. This process can address a variety of issues as well, such as a request by one parent to relocate the children away from Hawaii; the impact of domestic violence; alcohol or drug use or abuse; or one parent’s actions to deny access or alienate the other parent from the children.

  • There are two types of third-party experts, child custody evaluators and fact finders:
  • The state of Hawaii has a list of Family Court-approved licensed, trained custody evaluators, most of whom are psychologists or psychiatrists. To qualify for the list, they usually have a higher level of formal education and training than fact finders.

A fact finder is also a trained professional, such as a social worker or attorney, with extensive experience in handling child-related custody disputes.

In order to have a fact finder appointed to perform a custody evaluation, the individual must be agreed upon by both parties and approved by a judge. However, a judge can appoint a custody evaluator without the agreement of one or both parties. Fact finders are usually less expensive and have more schedule availability than custody evaluators, but this varies with the individual experts.

Which to choose depends on how difficult the custody case is. More complicated cases are more likely to require a licensed child custody evaluator. At any time prior to a trial, either party can request a fact finder or a custody evaluator, but the judge has the final authority to determine if one is appropriate.

The entire custody evaluation process usually takes at least six to eight weeks. Once the judge orders a custody evaluation, the third-party expert will begin the evaluation. Their tasks may include: reviewing relevant documents; performing home visits if possible; meeting with each parent to discuss their proposed custody and timesharing preference; and contacting other adults who are significant in the life of the children, such as extended relatives, teachers, pediatricians, therapists, or anyone else that can help them reach a conclusion.

Upon completion of the evaluation, the third-party will provide a written recommendation to the judge in the form of a comprehensive report and, if requested, will testify in a hearing in support of their findings. The expert’s recommendation is not binding on the judge. However, it is unusual for a family court judge to choose not to follow a third-party expert’s recommendations. Once the report is issued, if the parties can come to a settlement, the process will end. If not, the case will proceed to trial where the judge will make a final decision.

As you undertake the custody evaluation process, Seth Harris, senior associate of the PMK family law division, can help you decide whether to employ a third-party expert and which type will best fit your needs.

Going through a divorce is a life-changing event with emotional, social and legal impact on both the couple and other family members. Given the seriousness of the undertaking, it is useful to create a road map for steps to take in preparation of the process.

If you have already determined that your marriage is unsalvageable, you’ll want to ensure you have a robust support network in place. That includes relatives and friends who will offer you emotional support and an attorney who can provide the quality legal advice and expertise you need.

Before meeting with an attorney, you should take stock of your life goals and how they will impact the divorce proceedings. Some of the questions to ask yourself include:

  • Where will you live and will your children be living with you?
  • What will you need to ensure your and your children’s financial needs are met?
  • What type of emotional support will you and your children need from family and friends, and possibly from a professional therapist?
  • What assets might you need to replace or rebuild after you and your former spouse divide the marital property?
  • What spending changes will you need to take so that your new financial situation is manageable and can support you in the long term?

If you and your spouse agree on all key issues of the divorce, you can proceed with an “uncontested divorce.” The financial issues you will need to ensure are covered in the agreement include: the division of your marital assets and debts, and the determination of the amount of any spousal or child support payments and the duration of the payments. If there are children involved, the agreement should also include a determination of which parent has what custody and what the timesharing arrangements will be for each parent. The marriage will not be officially over until a family court judge has reviewed, approved and filed the written Divorce Decree.

If you do elect to proceed with an attorney, prior to meeting with them, gather a list of questions; and any relevant legal documents, such as an adoption decree, paternity orders, or a marital agreement, such as a prenuptial or separation agreement.

As financial considerations are among the most pressing of any divorce settlement, you will also want to gather all financial records. Any prior legal agreements, as mentioned above, will supersede all financial negotiations.

The financial documents will likely include:

  • Your last few pay statements
  • Any account statements for pensions you receive or will receive
  • Current account statements from banks, benefits, mutual funds, retirement and security accounts
  • Real property ownership documents and appraisals
  • Current business ownership documents and profit and loss statements
  • Current account statements for any existing debts such as mortgages, lines of credit, car loans, student loans or credit cards
  • Life insurance policies, especially if there is a tax value in the policy
  • Recently filed tax returns
  • Any large upcoming financial obligations such as tuition fees or medical bills
  • Statements or other documents showing assets you owned at the date of marriage
  • Documents showing any gift or inheritance received by you during the marriage

Whatever your goals for your divorce settlement, Seth Harris, senior associate of the PMK family law division, can provide an experienced, compassionate counsel and guide you through the divorce process, while keeping it as simple and understandable as possible.

Partner R. Laree McGuire was a featured panelist at the October 5th Hawaii Council of Community Associations Board of Directors Training, “Management and Operations of a Condominium and Planned Community Associations.” McGuire will also speak at the upcoming seminar on November 14th on the same topic.

When it comes to divorce, there are few issues as thorny and emotional as child custody. PMK is available to assist with all of your child custody needs and make the process as smooth as possible. Prior to a divorce, it is beneficial to identify your custody goals. For example:

Do you wish for your home to be your children’s primary residence?

  • What regular schedule do you believe will be best for your children?
  • Which parent will be responsible for what roles for maintaining your children’s school, medical, extracurricular and social needs?
  • Which parent will your children spend holidays and school breaks with?
  • What is the best way to transition your children between households?

In Hawaii, there are two types of custody; physical custody and legal custody. Legal custody is the authority of a parent to make long-term decisions about the child’s upbringing and welfare, such as education, medical care, and religious instruction. Physical custody is in which household the child lives.

If children reside primarily with one parent (largely determined by the number of overnights each week), that parent has sole physical custody. If the children spend equal time in each household, that is known as joint physical custody. However, these terms are largely outdated since the Family Court considers primarily how much time children spend with each parent on the whole.

For sole legal custody, one parent has the entire say regarding the children’s upbringing. For joint legal custody, both share decision-making authority and must agree on these decisions. Sole legal custody has become less frequent as judges like to encourage both parents to remain involved in decisions regarding the children unless it is simply not possible because of the circumstances.

If the former couple agrees on the custody arrangement, a judge will review it, but will almost always defer to their wishes. If the couple does not agree, a Hawaii family court judge will decide custody arrangements based on the child’s needs and which parent can best meet them. The judge will also consider factors such as the children’s ages, each parent’s living situation, the child’s preference (this is dependent on the child’s age and is not binding), and the best way to maintain continuity and stability. If there is evidence of abuse or neglect by one parent, the judge will limit that parent’s contact with their children.

The state of Hawaii does allow a custodial parent to relocate with their child out of state, but only if there is mutual agreement by the parties or a decision by the judge after a hearing to determine which custody arrangement is in the best interests of the child under the new situation. The judge will also consider whether there will be sufficient opportunity for the child to have significant in-person and remote contact with the parent who remains behind. For example, if one parent elects to move to the mainland, they might agree to allow the children to have longer visits – such as an entire summer – with the parent who remains in Hawaii so they may maintain a strong relationship with their children.

Circumstances of every custody situation depends on many circumstances, which have been further complicated due to the COVID-19 pandemic. Some of those additional factors may include quarantines, social distancing, and whether or not children are currently participating in face-to-face schooling. The PMK Family Law team is staying current regarding the COVID-19 pandemic’s effect on child custody and can help you navigate this complex situation.

In the process of a divorce, it is not uncommon for one (or both) spouses to withdraw significant funds from joint bank accounts, cancel existing credit and debit cards, redirect income to accounts controlled by one spouse, or cancel the other spouse’s health insurance or other needed services.

Whether done maliciously or in a well-meaning effort to preserve a former couple’s resources, these actions can place one spouse at a severe disadvantage if he or she is unemployed, has a substantially lower income, or lacks access to the joint accounts and income. In addition, one spouse may try to permanently relocate to another state with the children without the consent of the other spouse.

In July, 2018, the Hawaii State Legislature passed Act 213, which makes Automatic Restraining Orders mandatory in all divorce cases in the state. The intent is to protect both the spouse who is in a financially disadvantaged position during a divorce from being cut off financially, as well as to protect one spouse from having the other spouse leave the state permanently with the children. In both cases the automatic restraining order prohibits these actions until they are agreed on by the spouses or litigated by a judge. This new law requires that the Automatic Restraining Order go into effect immediately for the spouse filing the Complaint for Divorce, and upon service for the spouse not filing the Complaint for Divorce.

An automatic restraining order prevents both parties from making drastic, unilateral changes to their situation except in limited circumstances. Practically speaking, it limits both spouses to use of their finances for regular purposes, and prevents the parties from moving children off-island or away from their current school. If either side wants to make substantial changes during the divorce, they usually need approval from the judge or their spouse.