WHO GETS CUSTODY OF OUR CHILD?

Child custody in Hawai'i is based upon the best interests of the child. If you are involved in a custody dispute, you will hear this term many, many times. Simplified, it means that custody of a child or children is not given to a parent based on rewarding to that particular parent, or punishing the other parent, but rather focuses on what is best for the child. Two areas of custody need to be addressed: physical custody and legal custody.

 

Physical custody is the type of custody that people normally think of when thinking about custody. Physical custody decides with whom the child primarily lives. Physical custody can be SOLE (the child lives primarily with one parent) or JOINT/SHARED (the child divides time between both parents), or a situation between those, where one parent has sole physical custody, but the other parent has a greater than normal amount of visitation (usually more than 143 days), which is often called EXTENSIVE VISITATION. If one parent has sole physical custody, the other parent is normally said to have visitation (see discussion on visitation below). Child support is based upon physical custody, not legal custody.
 

Legal custody concerns who makes the major decisions regarding the child. Generally, this involves major medical, educational, and religious decisions for the child. Further, it includes issues such as who gives parental consent to obtain a driver's permit, joining the military before age 18, and getting an underage work permit. Legal custody can be sole or joint. Note that legal custody does not affect child support -- child support is tied in to physical custody only.

 

Both physical and legal custody can be awarded solely to one parent, or jointly to both parents. Regarding physical custody, for example, one parent may have sole physical custody with the other parent having visitation. Alternatively, the parents may have joint physical custody, where both parents have approximately equal time with the child(ren). Also, in the area of legal custody, one party may have sole legal custody, or the parents may have joint legal custody, sharing decision making authority over the child(ren). In the case of joint physical custody, there are a number of different ways that parents can equally share in their time with the children. This graphic shows some different examples of equal time sharing schedules.

This is a common misconception among people involved in custody disputes. The truth is, however, that even if one spouse has sole physical and sole legal custody of the child, the other spouse still has rights as the child's parent. Unless there is an adoption proceeding or a Child Protective Service action terminating that person's parental rights, that person will always be the child's parent. This means, among other rights, they are entitled to a relationship with their child, the right to visit with their child, the right to have phone contact with their child, and the right to have information about how their child is doing.

The end of the relationship between the adults does not, and should not mean the end of the parent-child relationship. It is unfortunate that many individuals become so caught up in their disputes that they lose sight of this.

 

VISITATION

 

IF ONE PARENT HAS PHYSICAL CUSTODY, WHAT KIND OF CONTACT DOES THE OTHER PARENT GET?

 

Generally, the parent who does not have custody receives reasonable visitation with their child. Often times, however, there are disputes as to exactly what is "reasonable." Keep in mind that family courts, judges, counselors, and other child experts across the country believe that it is in children's best interests to have BOTH parents actively involved in their lives, where possible. Visitation that exceeds 143 days per year is said to be extensive visitation. In some cases, a specific visitation schedule is spelled out, and in other cases, the specifics of visitation are left to the parents to work out themselves (i.e. by "mutual agreement"). While the Family Court has guidelines for visitation schedules, they are only guidelines, and a wide variety of schedules can be worked out.

 

 

Supervised visitation is an arrangement where the non-custodial parent's visitation must be supervised by a third-party. Supervised visitation may be ordered where the non-custodial parent poses potential harm to the child or may be unable to properly care for the child. The third-party supervisor might be a relative or family friend, or might be the Parents And Children Together ("PACT") Visitation Center.