Child custody arrangements are designed to serve a child’s needs, but children and families change over time. A parenting schedule that worked when a child was five may no longer make sense when that child is twelve. A parent may move, change jobs, develop health or substance abuse problems, or become more—or less—involved in the child’s life. The child’s educational, medical, or emotional needs may also change.
For these reasons, child custody orders in Hawaiʻi can be modified after they are entered.
The central question is not simply whether something has changed. Under Hawaiʻi law, the ultimate question is whether modifying the custody arrangement is in the best interests of the child.
When Can a Hawaiʻi Court Modify Child Custody?
Hawaiʻi Revised Statutes § 571-46 provides that a custody award is subject to modification or change whenever the best interests of the child require or justify the modification or change.
This applies to legal custody, physical custody, and parenting time or visitation arrangements.
Legal custody generally concerns major decisions affecting a child, such as education, medical care, and other significant matters. Physical custody concerns where the child lives and how parenting time is divided between the parents.
A parent may seek to modify one without necessarily changing the other. For example, repeated disputes over major educational or medical decisions might lead to a request to change legal custody even if the physical custody schedule stays largely the same.
Is a “Material Change in Circumstances” Required?
This is an area where Hawaiʻi law is often misunderstood.
Older Hawaiʻi cases described custody modification as requiring a parent to first establish a material change in circumstances before the court would consider whether a custody change was in the child’s best interests.
In Waldecker v. O’Scanlon, 137 Hawaiʻi 460, 375 P.3d 239 (2016), the Hawaiʻi Supreme Court rejected that two-step approach and overruled the earlier cases to the extent they imposed it.
The Court explained that HRS § 571-46 does not require a parent to clear a separate threshold of proving a material change in circumstances. Instead, there is a single inquiry: the best interests of the child.
That does not mean changed circumstances are irrelevant—quite the opposite. A court deciding whether to change an existing arrangement will almost always want to know what has happened since the prior order and why the current arrangement no longer serves the child’s best interests.
The distinction is that a material change in circumstances is not a separate legal hurdle that keeps the Family Court from reaching the child’s best interests.
What Circumstances May Support a Custody Modification?
There is no list of circumstances that automatically results in a custody change. Every family is different, and the Family Court looks at the particular circumstances of the child and parents. Common situations that lead a parent to seek modification include the following.
A Parent Plans to Relocate
Relocation is one of the most common reasons custody arrangements need to be revisited. A move from the Big Island to Oʻahu, from Hawaiʻi to the mainland, or even across an island far enough to make the current schedule impractical can require a new arrangement.
The court may need to consider where the child will primarily live, schools, travel logistics and costs, holidays and school breaks, and how the child can maintain a meaningful relationship with both parents.
A parent’s decision to move does not automatically determine custody. In Fisher v. Fisher, 111 Hawaiʻi 41, 137 P.3d 355 (2006), the Hawaiʻi Supreme Court declined to adopt a preference for continuity of care by the primary caretaker in relocation cases, holding that relocation disputes are decided under the best-interests standard, with no single factor given presumptive paramount weight. (Inter-island moves raise some issues unique to Hawaiʻi, discussed below.)
The Child’s Needs Have Changed
Custody arrangements often need to evolve as children grow.
A schedule designed for a preschooler may not work once the child is in elementary or high school. School demands, extracurricular activities, friendships, medical needs, and the child’s growing independence can all affect whether an existing arrangement remains practical.
A child may also develop significant educational, psychological, developmental, or medical needs that call for greater consistency or a different level of involvement from each parent.
The Existing Parenting Schedule Is No Longer Working
Some arrangements look workable on paper but prove difficult in practice. Frequent exchanges may interfere with school. Transportation may become unreasonable. Parents may end up living farther apart than expected, or a parent’s work schedule may change substantially.
If the schedule consistently creates problems for the child, the court may consider whether another arrangement would better meet the child’s needs.
Serious Problems Have Developed in a Parent’s Home
Concerns about a child’s safety or well-being can carry particular weight in a modification proceeding. Depending on the evidence, relevant concerns may include:
- abuse or neglect;
- domestic or family violence;
- drug or alcohol abuse;
- unsafe living conditions;
- inadequate supervision;
- significant instability; or
- other conduct affecting the child’s physical or emotional welfare.
Hawaiʻi’s custody statute specifically directs courts to consider abuse, neglect, safety, and drug or alcohol abuse in determining a child’s best interests. In addition, if the court finds that family violence has been committed by a parent, HRS § 571-46 creates a rebuttable presumption that it is detrimental to the child, and not in the child’s best interests, to be placed in the sole or joint custody of that parent.
The Parents Can No Longer Make Important Decisions Together
Joint legal custody requires some ability to make important decisions together. Parents do not need to agree on everything—disagreements are common after separation and divorce.
But if parents repeatedly reach an impasse on major issues such as medical treatment or education, the court may need to decide whether the existing legal custody arrangement still serves the child.
One Parent Is Interfering With the Child’s Relationship With the Other Parent
Among the best-interest factors the court considers is whether each parent allows the child to maintain family connections. Persistent interference with court-ordered parenting time, drawing the child into parental disputes, or undermining the child’s relationship with the other parent can all become relevant.
At the same time, not every disagreement or missed visit justifies changing custody. The court looks at the overall circumstances and their effect on the child.
A Parent’s Circumstances Have Improved
Sometimes the parent seeking modification is not claiming the other parent’s situation has gotten worse, but that their own has substantially improved.
For example, a parent with limited parenting time may have addressed the issues behind an earlier custody decision—establishing greater stability, completing treatment or counseling, or building a stronger and more consistent relationship with the child.
Improvement alone does not automatically result in a change. The question remains whether modifying the order would now be in the child’s best interests.
What Does the Court Consider in Determining the Child’s Best Interests?
HRS § 571-46(b) lists sixteen factors the Family Court may consider, including:
- any history of sexual or physical abuse of a child by a parent;
- any history of neglect or emotional abuse of a child by a parent;
- the overall quality of the parent-child relationship;
- each parent’s history of caregiving;
- each parent’s cooperation in developing and carrying out a plan to meet the child’s ongoing needs;
- the child’s physical health, emotional, safety, and educational needs;
- the child’s need for relationships with siblings;
- each parent’s actions allowing the child to maintain family connections;
- each parent’s ability to separate the child’s needs from the parent’s own needs;
- any evidence of past or current drug or alcohol abuse by a parent;
- the mental health of each parent;
- the areas and levels of conflict within the family; and
- a parent’s prior willful misuse of the protection-from-abuse process to gain a tactical advantage.
No single factor controls the outcome. The court’s task is to weigh the evidence as a whole and determine what arrangement best serves the particular child.
Does the Child Get to Choose Which Parent to Live With?
Not exactly. Hawaiʻi law does not set an age at which a child gets to choose.
Under HRS § 571-46, if a child is of sufficient age and capacity to reason so as to form an intelligent preference, the child’s wishes shall be considered and given due weight by the court.
The older and more mature the child, the more weight that preference may carry. But it is still one part of the overall best-interests determination, and the court is not required to follow it.
Does a Parent’s Remarriage Justify Changing Custody?
Not by itself.
Parents’ lives naturally change after divorce or separation. A parent may remarry, start a new relationship, have more children, change jobs, or move to a new home. The relevant question is how the change affects the child.
In one family, a remarriage may have little effect on the custody arrangement. In another, it may affect the child’s living situation, relationships, schedule, or a proposed relocation. The court looks at the real-world impact on the child, not simply the fact that a parent’s life has changed.
Can Parents Agree to Modify Custody?
Yes. When both parents agree the custody or parenting schedule should change, they can submit a stipulated agreement to the Family Court for approval.
Parents should be cautious about relying indefinitely on an informal arrangement that differs significantly from the court order. Even cooperative parents can have a falling out, and the written order is what the court will enforce. An amended order ensures the paperwork reflects what the family is actually doing.
What If the Parents Do Not Agree?
When one parent requests a change and the other objects, the matter becomes a contested Family Court proceeding.
Typically, the parent requesting the change files a motion in the existing Family Court case explaining the requested modification and the reasons for it. The procedure and forms can vary depending on whether the original case was a divorce, paternity/parentage, or other custody case, and on the judicial circuit. The Hawaiʻi Judiciary provides forms for post-decree custody and visitation modification.
The other parent has an opportunity to respond. Depending on the issues, the case may involve declarations, documents, witnesses, a custody evaluation or investigation, settlement conferences, and ultimately an evidentiary hearing or trial.
What Evidence Can Be Important in a Custody Modification Case?
Because custody decisions are highly fact-specific, documentation matters. Depending on the issues, relevant evidence might include:
- school attendance and educational records;
- medical or counseling records;
- communications between the parents;
- parenting calendars and records of exchanges;
- travel schedules;
- photographs;
- police or Child Welfare Services records, when applicable;
- evidence of substance abuse or treatment;
- testimony from people with relevant knowledge; and
- evidence showing how the current or proposed arrangement affects the child.
The strongest modification cases focus on the child, rather than simply cataloguing complaints about the other parent. The question is not just whether one parent has behaved badly, but how the evidence bears on the child’s safety, stability, development, relationships, and overall well-being.
Can Custody Be Modified Because a Parent Violated the Existing Order?
Possibly, but a violation does not automatically result in a change of custody.
Occasional scheduling disagreements are very different from a persistent pattern of disregarding the order. Repeated interference with parenting time, refusal to participate in major decisions, or other conduct affecting the child’s welfare may bear on whether the current arrangement still works.
Depending on the circumstances, a motion to enforce the existing order may be the more appropriate remedy.
Can a Custody Modification Affect Child Support?
Yes. Child support and custody are separate issues, but a substantial change in physical custody may change the calculation under the Hawaiʻi Child Support Guidelines.
For example, moving from one parent having primary physical custody to a substantially shared arrangement may require support to be recalculated. Parents pursuing a significant custody change should consider whether the support order also needs to be revisited.
What About a Parent Moving From One Island to Another?
Inter-island moves create custody issues unique to Hawaiʻi.
A schedule for two parents on Oʻahu looks very different from one involving a parent in Honolulu and another in Hilo, Kona, Maui, or Kauaʻi. The court may need to consider airfare, airport transportation, flight schedules, school calendars, the child’s age, how often the child can reasonably travel, and who pays for it.
Instead of frequent weekend exchanges, an inter-island arrangement often relies more on extended school breaks, holidays, summer parenting time, and regular video or phone contact. The right arrangement depends on the child’s age and the family’s particular circumstances.
Frequently Asked Questions About Modifying Child Custody in Hawaiʻi
How difficult is it to modify child custody in Hawaiʻi?
There is no automatic rule. The Family Court must decide whether the requested modification is in the child’s best interests. The strength of a case depends heavily on the existing order, what has happened since it was entered, and how the proposed change would affect the child.
Do I have to prove a material change in circumstances?
Not as a separate threshold requirement. In Waldecker v. O’Scanlon, the Hawaiʻi Supreme Court held that the controlling inquiry is the child’s best interests. Changes since the prior order are still often highly relevant to that determination.
Can legal custody be changed without changing physical custody?
Yes. Depending on the circumstances, a court can modify decision-making authority while leaving the physical custody schedule largely intact.
Can my child decide where to live?
A sufficiently mature child’s wishes must be considered and given due weight, but the child does not control the decision. The court must still determine the child’s best interests.
Can I move with my child if the custody order doesn’t prohibit it?
Don’t assume so. Even if the order is silent on relocation, a move that makes the existing schedule unworkable can lead to a contested custody proceeding, and the court will decide what arrangement serves the child’s best interests—which may not be the one the moving parent expects. A parent considering an inter-island or out-of-state move should address custody before moving, either by agreement with the other parent or through the Family Court.
Further reading on Child Custody:
- Child Custody & Visitation in Hawaiʻi
- Legal Custody vs. Physical Custody in Hawaiʻi
- Can a Parent Move from the Big Island to Oʻahu After Divorce?
- What Does an Inter-Island Parenting Schedule Actually Look Like?
Speak With a Hawaiʻi Child Custody Attorney
Custody arrangements sometimes need to change as children grow and families evolve. Whether modification is appropriate depends on the existing order, what has happened since it was entered, and—most importantly—what arrangement now serves the child’s best interests.
The attorneys at Doi/Luke, Attorneys at Law represent parents in child custody, visitation, relocation, and other family law matters throughout Hawaiʻi.
If you are considering asking to modify custody—or responding to the other parent’s request—an experienced Hawaiʻi family law attorney can help you evaluate the existing order, the evidence, and your options in Family Court.
This article is provided for general informational purposes only and should not be construed as legal advice. Every family law case depends on its particular facts and circumstances. If you need legal advice about your situation, consult a qualified attorney.
