Custody Evaluators, Fact Finders, and the Custody Investigation Unit – Determining Custody in the Hawaii Family Courts
When people are dealing with child custody in the Family Court in Hawaii, the terms can be confusing. Are you going to hire a CE? Select an FF? Qualify for the CIU? Abbreviations aside, these are all different methods of investigation, to help the Family Court judges reach decisions on child custody: Custody Evaluators, Fact Finders, and the Custody Investigation Unit.
Whether the custody case is in a divorce or a paternity action, here is a brief overview of the choices:
Custody Evaluator (“CE”):
this is an individual appointed by a Family Court judge to investigate a child custody matter. A CE must either be a licensed psychologist, marriage and family therapist, psychiatrist, or social worker. Qualified individuals need to be on the Court’s list to appointed as a CE. These individuals typically charge a flat fee for to conduct their investigation and provide a written report to the Court, and sometimes testify at a hearing or trial. As private practice professionals, the fees can be considerable.
Fact Finder (“FF”):
also referred to as “Best Interests Fact Finders,” these are individuals who can be appointed for a custody investigation. They differ from CEs however, in that they do not need to be a licensed psychologist/therapist/psychiatrist/social worker. FFs must have education and training in child custody evaluation, and are most often family lawyers (who did the bulk of the custody investigations prior to a law change requiring CEs to have the therapy-related licenses noted above). FFs can only be appointed by mutual agreement of the parents (or if the Court determines that no qualified CEs are available, which is highly unlikely). FF fees are often flat fees, like CE fees, and similarly priced.
Custody Investigation Unit (“CIU”):
the CIU is an office with the Courts that has a staff of social workers to conduct custody investigations. Like CEs and FFs, they will investigate then generate a written report to the appointing judge with their findings and recommendations. If called to do so, they will testify as witnesses at hearing or trial, regarding their report. A significant difference from a CE or FF however, is that the CIU does not charge a fee, as it is part of the Judiciary. Cases must income qualify for use of the CIU, where the Court looks at the incomes of both parents and family size.
Custody recommendations vs. decisions.
It is important to note that none of the above investigators make the final decision on child custody and visitation. These entities only provide assistance to the Court by presenting their observations and findings; the final decision if a case goes to hearing or trial always rests with the Family Court judge.
Choosing a route.
If parties are going to go through a custody investigation, it is advisable that they speak to a knowledgeable family lawyer about what type of investigation, and if necessary how to select which specific individual they might choose.
Are child custody problems keeping you up at night? It’s an extremely stressful process. If you have questions about child custody and visitation, and would like to set up a consult, e-mail us or call us at 593-2199. We’ll be happy to hear from you.
FURTHER READING ON CHILD CUSTODY IN HAWAII
ALIMONY OPTIONS IN PRENUPTIAL AGREEMENTS
Prenuptial agreements in the past commonly contained alimony waiver provisions, specifying that if the marriage ended in divorce there would be no alimony claims from either side. More recently however, we have explored creative alimony options in prenuptial agreements, giving couples more choices on potential spousal support in the event of a divorce.
Rather than a straight “no alimony” paragraph in a prenuptial, brides, grooms, and their respective attorneys are weighing out different possibilities in alimony. This drafting takes into account that sometimes the lesser earning spouse is feeling scared or apprehensive about their future – that in the event of a divorce they will be left homeless or destitute. This is especially so in prenups where the lesser earning spouse is coming to the U.S. to marry the higher earning spouse. Often these brides/grooms-to-be are coming with very little to no assets, and adapting to a strange new culture and country. In such instances, we sometimes draft alimony language that seeks to directly address their concerns. An example of these options include set amounts and formula-based amounts.
In determining a number, we may look to the specific future needs of that spouse, such as airfare (if they wish to return to their home country), rent deposits and rent to assist them in divorce transition, and other projectable expenses. These projections may result in setting a specified amount of alimony. This alimony may be payable in monthly installments or a lump sum (noting that paying in lump sum may prevent the paying spouse from deducting the alimony payments in their tax filings, depending on the structure). Again, the specific needs and concerns of the alimony-receiving spouse may dictate whether lump sum, monthly payments, or a hybrid of the two is best.
Some are opting for a formula-determined alimony amount to determine amount and duration of alimony. One of the frequent complaints about alimony in Hawaii is the lack of any formula or strict guidelines. Rather, alimony in Hawaii is determined by the agreement of the parties or by a Judge looking at the factors affecting alimony, as set forth in Hawaii statutes. Nevertheless, in prenuptial situations, we are frequently using formulas, such as “alimony shall be XX% of [paying spouse]’s net income per month, with the number of months being YY% of total number of months of the marriage. When using this type of formula it’s also important to specify how some portions of that formula are derived, such as guidelines on how “net income” above is calculated, and determining how the length of the marriage is calculated (e.g., using the date of the wedding until the date of filing of a divorce complaint).
WHICH WAY IS BEST?
Ultimately, there is no “best” fit for everyone. Alimony provisions, like prenuptial agreements as a whole, are not one-size fits all. Rather, alimony options in prenuptial agreements should be tailored to what fits each couples’ unique situation, circumstances, and desires.
If you’d like to speak with an attorney experienced is designing and drafting creative prenuptial agreements, call us at (808) 593-2199 or contact us online, and we’ll be happy to discuss your options.
FURTHER READING ON PRENUPTIAL AGREEMENTS:
As we reflect on 2016 and all that it brought, we thank our friends and families, and look forward towards 2017:
- the 241st birthday of the United States;
- year of the rooster (fire rooster, to be specific) in the Chinese horoscope;
- Hebrew year 5778;
- the United Nations International Year of Sustainable Tourism for Development;
- a total solar eclipse (8/21/2017); and
- lots and lots of other stuff that we overlooked.
Happy new year all!
WHY MARRYING COUPLES NEED PRENUPTIAL AGREEMENTS
People often have the mistaken idea that prenups are only for the wealthy, but that is not true. Large numbers of brides-to-be and grooms-to-be want the certainty that they can get from a prenuptial agreement or “prenup,” and they come from all different financial circumstances. There are many, many reasons why marrying couples need prenuptial agreements, and some may surprise you.
Among the most common reasons:
- Protect your premarital property – if one party has specific property or monies prior to the marriage, a prenup can prevent dividing the premarital property, in particular the increase in value of that property during the marriage. Although the premarital property itself is typically not divisible under Hawaii divorce laws, things that are acquired during the marriage are divided in a divorce. This includes an increase in the value of the premarital property. In some instances during a long marriage, the increase in value (divisible) may exceed owning spouse’s premarital value (not divisible) portion! A prenup can specify that both the premarital property and any increases to that property are kept separate.
- Protect or separate your inheritance or family money – some prenuptial agreements are requested by parents and other family members in order to protect property that one party has inherited from his/her family, or will inherit in the future. Similar to premarital property discussed above, a spouse receiving an inheritance or gift typically keeps the date of receipt value if the couple divorces. However, just as with premarital property, the increase in value on the inheritance/gift is divisible in a divorce. A valid prenuptial agreement can lay out that the gift or inheritance property, including any increases in value stays with the recipient in a divorce.
- Eliminate or define alimony – prenups can have a wide range of alimony options, from providing that NO alimony be awarded in a divorce, to specifying a set amount of alimony. This is typically a concern where one of the parties’ income is significantly greater than the other party. Hawaii has no formula for alimony. Instead, Hawaii law has a list of factors that a court would consider in determining alimony, people are understandably concerned about the uncertainty of alimony. Will there be alimony? A huge number? A tiny number? For some, the ability to fix alimony: (1) will there by alimony; (2) how much; and (3) how long – by either a set number or a set formula can be a very appealing part of a prenuptial agreement.
- Support your estate planning – this might include leaving specific monies or gifts to children from a previous relationship, or to one’s parents. Unknown to most people, a spouse in Hawaii and in most states has rights to claim from their deceased spouse’s estate, typically called an elective share, because of their marriage – this may override part or all of the deceased person’s will or trust. Typically, a prenuptial agreement will include a waiver of that elective share right by both parties, making it such that each person’s will/trust/estate plan controls what happens to their assets in case of death.
Define specifically what is “marital” property and what is “separate” property – beyond premarital assets and gift/inheritance assets, a prenup can allow people to determine how they want future acquired property to be handled – whether they want to have it split equally, divided by proportion of contribution, or held and owned separately. This kind of certainty is what many seek when having a prenup prepared.
- You own your own business – many business owners seek prenuptial agreements to ensure that they can keep their premarital business in a divorce. A common problem in divorces involving self-employed spouses is valuing their business. A professional business valuation, conducted by a forensic accountant or other business valuator can be very expensive and time-consuming. In addition, many small business owners are reluctant to open up their books for attorneys, judges, accountants, and others to see
- Establish procedures/rules for deciding future matters – some couples utilize prenuptial agreements to spell out how their finances will be handled during marriage, including how regular expenses are paid, managing debt, saving for retirement, among others. For example, some couples will draw up a financial plans where each party deposits a certain amount of each paycheck into a joint account, from which certain specific bills will be paid – housing, utilities, etc. Other couples wish to insert procedures before either spouse makes a purchase over a specified amount.
- Reduce conflict/fighting in the event of a divorce – as any divorce lawyer will tell you (including us), a contested divorce is a very costly and stressful process. A properly drafted prenup can avoid that messiness, saving thousands or even tens of thousands of dollars in legal fees. This reason is one of the most common (and common sense!) reasons for seeking a prenuptial agreement.
Conversely, there are a few of reasons for which people don’t need a prenuptial agreement:
Date of marriage value of premarital assets: protecting the value of your premarital property as of the date of marriage – even without a prenuptial agreement, in a divorce each party is entitled to the date of marriage value of their premarital property (having a prenup however, serves to protect the increase in value of those premarital assets).
- Child custody and visitation: deciding child custody – a prenup cannot validly bind people to a child custody or visitation arrangement. This is generally because any custody/visitation award in a divorce needs to be approved by a judge as being in the child’s best interests. Additionally for those couples planning to have children in the future, the court would understandably not enforce an agreement as to future children.
- Child support: as child support needs to be based upon current financial circumstances of the parents, a prenup agreement as to child support made sometime in the past would not be viewed as binding.
There are many more examples on both sides of the equation, as each couple’s specific situation is different. It is clear however, that prenuptial agreements provide future married couples a tool to help them seriously plan for their future. Prenups give couples an amount of predictability and certainty if things do not go as planned.
Doi/Luke, Islandlawyers has handled significant numbers of prenuptial agreements over the years, in sizes big and small, complex and simple. To discuss options that might fit your needs, call them at (808) 593-2199, or e-mail them at firstname.lastname@example.org. They’ll be happy to speak with you about your options.
FURTHER READING ON PRENUPTIAL AGREEMENTS:
MAUI DOMESTIC VIOLENCE VICTIM HAD TRO AGAINST ABUSER
A Maui woman was fatally stabbed by her estranged husband in a Wailuku supermarket on Tuesday, as reported by KHON2. The crime was made worse by the fact that the victim/wife had already obtained a domestic violence Order for Protection against her husband just last Wednesday in the Maui Family Court.
Per Court records, the victim, 24 year old Kehau Farias Schmidt had filed for a TRO against her husband, 45 year old Stephen B. Schmidt on March 31, 2016. The Ex Parte Petition for TRO was granted that day, and served the same day upon her husband. The parties appeared at Family Court in Wailuku on April 13, 2016, where the Court ordered a one year Order for Protection against the husband, and also directed him to domestic violence classes. Despite this, on April 19, 2016, Schmidt allegedly engaged in contact with his wife and a man accompanying her, leading to her fatal stabbing. Thereafter, Schmidt allegedly stabbed two other men at the store who had attempted to intervene.
The murder occurring despite the existence of a protective order is a terrifying thought for other domestic violence victims seeking protection from their abuser. However, rather than simply seeing a TRO/protective order as being useless, it should highlight what lawyers in the domestic violence field so often tell their clients: an order for protection is only a piece of paper. We do not tell victims this in order to dissuade them from seeking help. Instead, we underline that the TRO process is only as strong as their abuser’s fear of going to jail. Abusers who do not fear going to jail, or those that feel that they have nothing to lose, are the most dangerous and may not be deterred by a TRO. Thus, a safety plan is strongly encouraged. A safety plan is an individual plan for a victim of how to be safe – where to go, what immediate and long terms steps to take, who to inform about the situation (family, friends, co-workers, other authorities). The National Domestic Violence Hotline has a good outline of safety planning.
Applying for a TRO and Order for Protection are good steps for a domestic violence victim. But it needs to be supported by good planning and additional safety steps.
Some DV resources for victims seeking help:
- the Hawaii State Coalition Against Domestic Violence;
- the Domestic Violence Action Center;
- No More – the campaign to end domestic violence and sexual assault;
- the National Domestic Violence Hotline.
These are just a few of the many places to seek assistance. Those in emergency situations should call 911, and seek further help from these resources along with family and friends.
FURTHER READING ON TROS:
FAMILY COURTS IN THE STATE OF HAWAII
The Unified Family Court
The Family Courts in Hawaii are unified family courts, meaning that they handle a broad range of cases that relate to families, dealing with divorce, paternity, child support (in divorce and paternity cases), child custody and visitation (in divorce and paternity cases), temporary restraining orders (TRO), juvenile criminal cases, family criminal matters (violations of restraining orders and family abuse), Child Welfare Services (formerly Child Protective Services), adoption, guardianship, and other similar matters. The goal in having a unified family court is to handle family issues in a comprehensive manner. Hawaii’s Family Court was one of the earliest unified systems.
Family Courts in the State of Hawaii, like the District and Circuit Courts are broken up into four circuits, roughly corresponding to the major islands:
- First Circuit: covers the City and County of Honolulu, including all of Oahu;
- Second Circuit: covers the County of Maui, which includes Maui, Molokai, and Lanai;
- Third Circuit: covers the County of Hawaii, encompassing the Big Island; and
- Fifth Circuit: covers the County of Kauai, which is the island of Kauai.
The Fourth Circuit, which comprised part of the Big Island, was merged with the Third Circuit in 1943 and thus no longer exists.
First Circuit Court: the primary location of the Family Court on Oahu is in Kapolei, located at 4675 Kapolei Parkway, Kapolei, Hawaii 96707 (map). This facility, the Ronald T.Y. Moon Judiciary Complex (named after a former Supreme Court Chief Justice) houses the Family Court courtrooms, the filing clerks, records room, judges’ chambers, juvenile probation officers, and the Juvenile Detention Facility. The Waianae District Court is also housed in the Kapolei Complex. Parking is metered, and only takes quarters.
A few of the Family Court courtrooms are located in the Honolulu District Court at 1111 Alakea Street, Honolulu, Hawaii 96813 (map). These courtrooms primarily hear Family Court criminal proceedings (charges for violations of TROs, abuse of a household member, or harassment of a household member) as well as a small number of guardianship and TRO hearings (the nearest municipal parking lot is Ali’i Place, across the street, entrance on Alakea Street). Kaahumanu Hale, the Circuit Court building at 777 Punchbowl Street, Honolulu, Hawaii 96813 (map) in downtown Honolulu, housed the Family Court until 2010 when it was moved to Kapolei. Kaahumanu Hale however, does retain two filing clerk windows for Family Court, so that Family Court documents may be filed there or in Kapolei (Kaahumanu Hale has a large parking structure, with a parking attendant). Additionally, most of the Family Court’s forms are available at both Kaahumanu Hale and Kapolei. For more information on Honolulu resources, see our Honolulu Courthouse Information page.
Note: for all the smaller, rural courts, please check before going there to file documents. Many of these small locations only house the courtrooms, while the filing clerks are often located at the primary courthouse for the Circuit.
Second Circuit Court: as the Circuit covers three islands, there are courthouses or facilities on each island. The largest location is on Maui at 2145 Main Street, Wailuku, Hawaii 96793 (map – although I think that the Google pointer points to the wrong location across the street). This building, Hoapili Hale, houses courtrooms, the filing clerks, and the records room. Parking is metered, so bring change. Family Court cases are also heard on Molokai at 55 Makaena Place in Kaunakakai (map) (Molokai’s County building) and on Lanai at 730 Lanai Avenue in Lanai City (map).
Third Circuit: the Big Island hears Family Court cases in three locations, in Hilo at the new facility built on the old Kaiko’o Mall at 777 Kilauea Avenue, Hilo, Hawaii 96720 (map), in Kona housed in the Lenders Document Building (map) (parking is free, but limited), and in Waimea at the Waimea Civic Center at Kamuela (map).
Fifth Circuit: all Kauai Family Court cases are heard at the new court facility, Pu’uhonua Hale at 3970 Kaana Street, Lihue, Hawaii 96766 (map). Family Court courtrooms, filing clerks, and records room are all located on the first floor of the facility. Parking is free.
The Family Court’s website is located on the State Judiciary site: http://www.courts.state.hi.us/courts/family/family_courts.html. Although the site doesn’t have much in-depth information, it does have links to some of the Family Court’s forms, contact information, fees, and programs.
Islandlawyers celebrates Women’s Equality Day, which commemorates women in the U.S. winning the right to vote. Amazingly, the 19th Amendment to the U.S. Constitution was only passed in 1920, meaning that women have only voting rights in this country for 95 years. Time Magazine earlier today noted that women only make up 33% of the U.S. Supreme Court, 19% of the U.S. House, and 20% of the U.S. Senate, even though women are exercising their voting rights, turning out in greater numbers and greater percentages than men in U.S. elections.
A glaring shortcoming in women’s equality is the failure of the U.S. to pass the Equal Rights Amendment, or ERA. The ERA proposed to ensure equal rights for women in the United States. In the expansion of rights over the last few decades, most Americans are probably unaware that this right does not exist. Although the ERA was passed by Congress in 1972, it needed to be ratified by at least 38 of the 50 states (greater than 75% of the states) by 1982. Over the next ten years however, only 35 states ratified the Amendment. Despite being a sad statement on the country’s position on women’s rights, it is nice to note the first state to ratify the ERA: Hawaii.
We rejoice today for the women in our society, our mothers and daughters, sisters and grandmothers, friends and even strangers. #WomensEqualityDay #ERANow
FAMILY COURT OF THE FIRST CIRCUIT’S PROTECTION FROM PARENTAL DISPUTES
Child custody proceedings are often ugly, draw out processes that permanently scar families and children. In an attempt to minimize the effect of parental conflict, the Hawaii Family Court of the First Circuit (Oahu) put together its “Protection from Parental Disputes.” The Court frequently requests that the Protection from Parental Disputes language be inserted in divorce decrees and other custody orders, in hopes of lessening the impact on children of divorcing/separating parents. Even if many parents forget or ignore the Protection language, if it improves just a small percentage of children’s lives in this traumatizing period, it is a worthwhile insertion. If you are involved in a divorce or custody action, think about cutting and pasting or attaching the Court’s language (below) into your own document.
General Behavior of the Parties: Protection from Parental Disputes and Alienation The parties recognize that they can do much to minimize any possible negative impact of their divorce on the children. To this end, each of the parties agrees that he or she will always support the children in having the best possible relationship with the other parent. The parties further agree that:
- a. Neither parent shall engage in, nor permit/encourage any step-parent, fiancee, significant other, grandparent, other relative or other associate, to criticize, disparage, demand, insult, or otherwise “bad-mouth” the other parent, step-parent, significant other, or grandparent to the children or in the presence or hearing of the children. This prohibition shall apply even to information that is truthful and accurate.
- b. Neither parent shall fight (verbally or physically) – in person or by telephone – in the presence or hearing of the children.
- c. Neither parent shall align or attempt to align the children against the other parent (or other relative), nor allow or encourage anyone else (including relatives and friends) to do so. Neither parent shall directly or indirectly ask the children to choose between parents, to choose to reside with one parent instead of the other, or to choose one household over the other household.
- d. Neither parent shall ask the children to pass orders or instructions or uncomplimentary messages to the other parent (orally or in writing). Complimentary messages are allowed, and encouraged.
- e. Neither parent shall ask the children to “keep secrets from” the other parent or ask or encourage the children to lie to the other parent about events or persons the children experienced during a visit with the other parent, grandparent or relative.
- f. Neither parent shall ask the children to “spy on” the other parent or the other parent’s lifestyle or household nor ask any detailed, “probing” questions about the other parent or lifestyle or household of the other parent.
- g. Both parents shall encourage a positive parent-child relationship between the children and the other parent, and shall not say or do anything (including “grimace” or put on a “long face”) to adversely affect the children’s love for the other parent.
- h. Neither parent shall interfere with the parent-child relationship with the other parent, and neither parent shall conceal the children from the other parent during the other parent’s period of responsibility.
- i. In general they will always do whatever they reasonably can to ensure that there is as much consistency and continuity as possible in the manner in which a child receives guidance and nurturance in all areas of his or her life.
While inserting this type of language into custody documents will not necessarily stop this type of bad parenting behavior, it may show parents what types of behavior the Family Court finds acceptable.
KHON2 News speaks with Gavin Doi of Doi/Luke, Islandlawyers on February 3, 2015, about a proposed law in he Hawaii Legislature to collect child support from grandparents of children on state assistance. Specifically, the proposed State House Bill 128 would allow the State, via the Child Support Enforcement Agency, to pursue the parents of minors who have children on State assistance. Essentially the bill would hold grandparents responsible for welfare payments made to their grandchildren if the parents of those grandchildren are still under 18. The gist of the bill is not really pursuing “grandparents,” but rather making parents liable when their teen children have their own babies. This liability would end when the parents of the children on assistance turn 18.
As of March 27, 2015, House Bill 128 has passed second reading in the House of Representatives, and is currently being discussed in the House Judiciary Committee.
[Update: the 2015 Hawaii Legislative session adjourned on May 7, 2015, without full action on the bill]
Islandlawyers attorney Gavin Doi was interviewed by Kristine Uyeno of KHON2 News on January 2, 2014, regarding same sex divorce in Hawaii. Doi/Luke, Islandlawyers filed the first same sex divorce complaint in Hawaii, upon Hawaii’s enactment of a same sex marriage law, clearing the way for same sex divorce. Gavin specifically addressed that the forms and process for divorce in Hawaii had not yet caught up with the legalization of same sex divorces, and how to deal with those form and process issues.
Marisa Yamane of KHON2 News interviewed Gavin Doi of Doi/Luke, Islandlawyers on May 20, 2014 for an Action Line story involving family law. Action Line was seeking to help a Big Island man who is being pursued for back child support towards a child that he says is not his, as proven by DNA testing.
KHON spoke with Garry Kemp, Administrator of the Child Support Enforcement Agency for the State of Hawaii regarding Mr. Ortiz’ claim that he was not the father of the child. Seeking the viewpoint of a family lawyer, Ms. Yamane talked with Doi about how people in such a situation can find help.