A.A. v. B.B..

***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Electronically Filed
Supreme Court
SCAP-15-0000022
03-NOV-2016
10:35 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

A.A.,
Petitioner/Petitioner-Appellant,

vs.

B.B.,
Respondent/Respondent-Appellee.

SCAP-15-0000022

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(CAAP-15-0000022; FC-M NO. 14-1-0034K)

NOVEMBER 3, 2016

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J.

Petitioner A.A. and Respondent B.B. decided together

to bring a child into their home. Although only B.B. legally

adopted the child, A.A. and B.B. co-parented the child and

shared physical custody of her, even after their separation as a

couple. A.A. brought a petition for joint custody in the Family

Court of the Third Circuit (family court) based solely on the de

facto custody provision of Hawaiʻi Revised Statutes (HRS) § 571-
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

46(a)(2), which was denied. A.A. appealed the family court’s

denial of his petition and applied for a transfer to this court,

which we granted.

The main issue on appeal concerns the interpretation

and application of Hawaii’s statutory de facto custody provision

and whether it infringes on B.B.’s parental rights. Because we

conclude that the family court misinterpreted and misapplied the

de facto custody provision, we vacate the family court’s

decision and remand the case for further proceedings.

I. BACKGROUND

A. Factual Background

A.A. and B.B. entered into a committed relationship in

March 2009 and lived together continuously until October 2013.

Child was born in September 2011, and B.B. is the biological

grandfather and legal adoptive father of Child.

The decision to adopt and raise Child was a joint

decision made by B.B. and A.A. Together they determined a first

and last name for the baby, giving her each of their last names

separated by a hyphen. A.A., B.B., Child, and B.B.’s teenage

son lived together as a family unit from October 2011 until

October 2013. During this time, A.A. and B.B. jointly shared

all parental care, duties, and responsibilities for Child. From

the time she could talk, Child referred to B.B. as “Papa” and

A.A. as “Daddy.” A.A. and B.B. discussed and intended that A.A.

2
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

would adopt Child, and they retained an attorney to accomplish

the adoption. However, A.A.’s planned adoption of Child never

occurred, and although A.A. and B.B. discussed entering into a

civil union or marriage, that also never occurred.

After their separation in October 2013, B.B. and A.A.

entered into a written 50/50 co-parenting agreement for Child.

Under the co-parenting agreement, A.A. and B.B. each had actual

care and custody of Child from Sunday to Wednesday and then

Sunday to Thursday in alternating weeks. During the period of

the co-parenting agreement, A.A. and B.B. communicated through

email to discuss Child. B.B. indicated to A.A. by email that he

wanted A.A. to have custody of Child should anything ever happen

to him. In April 2014, B.B. sent A.A. a letter declaring that

the written 50/50 co-parenting agreement was revoked on the

ground that it was B.B.’s “parental right” to do so.

B. A.A.’s Petition for Joint Custody

A.A. filed a petition for joint custody in the family

court in May 2014, seeking joint legal and joint 50/50 actual

physical custody of Child pursuant to HRS § 571-46(a)(2).1

1
HRS § 571-46(a)(2) (Supp. 2013) provides,

(a) . . . . In awarding the custody, the court shall be
guided by the following standards, considerations, and
procedures:

. . . .

(continued . . .)

3
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

A.A.’s petition alleged that he had de facto joint custody of

Child “in a stable and wholesome home” and that he was “a fit

and proper person to have care, custody, and control of the

minor child.”

The family court held an initial hearing on A.A.’s

petition for joint custody in June 2014.2 At the June hearing,

the court noted that there were no disputed facts in the case

and that the issue was whether B.B. has the absolute right to

dictate who can have custody of the minor child.

During the evidentiary hearing held in October, B.B.

offered Dr. Jennifer L. De Costa as “an expert in the field of

family behaviors and in the relationship of children with their

families.”3 A.A. objected to Dr. De Costa’s qualification as an

expert, asserting that she should be qualified as a marriage and

family counselor; the family court concluded that Dr. De Costa

(2) Custody may be awarded to persons other than the
father or mother whenever the award serves the best
interest of the child. Any person who has had de facto
custody of the child in a stable and wholesome home and is
a fit and proper person shall be entitled prima facie to
an award of custody . . . .
2
The Honorable Melvin H. Fujino presided.

3
Dr. De Costa testified that she was a behavior health specialist
at Innovative Hawaiʻi Community Hospital and possessed a bachelor’s degree in
psychology from the University of Hawaiʻi, a master’s degree in science from
Western Washington University, a master’s degree in marriage and family
therapy from University of Oregon, and a doctorate degree from Oregon State
University in family counseling and gerontology.

4
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

was an expert in the field of family behavior and relationships

as it relates to children and families.

On direct examination, Dr. De Costa testified

extensively about B.B.’s teenage son. Dr. De Costa was

permitted to testify over A.A.’s objection that she saw a

correlation between depressive symptoms exhibited by B.B.’s son

and interactions with A.A.; she discussed this correlation in

reference to B.B.’s son’s performance on tests used to measure

depression and anxiety. Dr. De Costa also testified regarding

her counseling and treatment of Child. B.B.’s counsel requested

Dr. De Costa to assume that A.A. had an anger management problem

and asked her to offer an opinion as to whether she would have

any concerns of Child having a custodial relationship with A.A.

A.A. objected to the testimony on the basis that the

hypothetical question assumed facts not in evidence.4 Dr. De

Costa was permitted to opine that she would have concerns about

Child having a relationship with A.A. Dr. De Costa was also

asked whether Child would be harmed from termination of the

relationship with A.A.; she testified, “This is a hard one. But

I don’t--right now, where she’s at, I don’t think so.”

4
A.A. later testified that he had an anger management problem that
interfered with his relationship with B.B..

5
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

A.A. offered Dr. Jamuna Wyss, a clinical psychologist,

as an expert on parent-child psychological relationships and

parenting styles. Dr. Wyss indicated that A.A. and B.B.

attended couples therapy with him beginning in October 2013 and

that A.A. continued to be his client in individual therapy. Dr.

Wyss gave a favorable opinion regarding A.A. as a parent and the

home he provided for Child. Dr. Wyss also testified regarding

the consequences when parent-child relationships are terminated,

opining that there was a likelihood that termination of the

relationship between A.A. and Child would result in “immediate-

term and long-term damaging psychological consequences” to

Child.

A.A.’s counsel also attempted to enter into evidence a

clinical note of Dr. Wyss’s related to sex-abuse allegations

involving A.A. The court did not accept the note into evidence

and did not allow Dr. Wyss to testify regarding the allegation

because it was outside the scope of Dr. Wyss’s report. However,

Dr. Wyss was permitted to testify that he was aware of sex-abuse

allegations involving A.A. and that he did not believe that A.A.

posed a threat of abuse to Child, “be it sexual, physical, or

emotional abuse or neglect.”

On December 11, 2014, the family court entered its

“Findings of Fact, Conclusions of Law; Order/Final Judgment”

denying A.A.’s petition for joint custody. The family court

6
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

characterized the main issue as follows: “[I]n a State where the

parties can get married or can become a civil union partnership,

if they choose not to, . . . should [A.A.] be afforded standing

to claim what is known as a ‘psychological father.’” The court

concluded that A.A. did not have standing as Child’s

“psychological father” because the parties were not married.

Although the family court determined that HRS § 571-46 applied,

which allows a custody award to a person who demonstrates de

facto custody of a child, the court concluded that A.A. failed

to demonstrate “by strict scrutiny a compelling state interest

as to why this ‘de facto’ section should apply to him when in

fact the parties were not married, and when the options of civil

union or marriage were available.”5

II. DISCUSSION

A.A.’s petition requested joint custody of Child

pursuant to HRS § 571-46(a)(2), asserting that A.A. “is a person

who has had de facto joint custody of the child in a stable and

wholesome home” and that joint custody was in the best interests

of Child.6 Although the family court determined that HRS § 571-

5
The family court also found, “In this case the Court will find
compelling the testimony of the child’s therapist, Jennifer De Costa, in the
sense that she testified that in her opinion that the child would not be
harmed and in fact that she did see some regression once the Court allowed
supervised visitation between [Child and A.A.].”
6
A.A. sought custody of Child based solely on the de facto
provision of HRS § 571-46(a)(2). Additionally, in his opening brief, A.A.

(continued . . .)

7
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

46(a)(2) was applicable, the court declined to apply this

statutory provision, reasoning that A.A. failed to demonstrate

“by strict scrutiny a compelling state interest” to support the

application of the statute under the circumstances of this case.

Thus, the primary issues on appeal are whether the family court

properly interpreted and applied HRS § 571-46(a)(2) and whether

its application in this case would infringe on B.B.’s

constitutionally protected parental rights. A.A. also

challenges several evidentiary rulings regarding the expert

testimony presented at the hearing.

A. Interpretation and Application of HRS § 571-46(a)(2)

In cases involving child custody, it is well

established that the guiding consideration is the best interests

of the child. E.g., Doe v. Doe, 98 Hawaiʻi 144, 155, 44 P.3d

1085, 1096 (2002); Fujikane v. Fujikane, 61 Haw. 352, 354, 604

cites only to HRS § 571-46(a)(2)--and not HRS § 571-46(a)(1)--as a basis for
his claim for custody of Child. Although A.A. references the “parent by
estoppel” doctrine of other jurisdictions in his opening brief, he does so in
support of his argument that the trial court erred in its determination that
A.A. was required to show by strict scrutiny a compelling state interest as
to why HRS § 571-46(a)(2) should apply to him. Thus, it appears that to the
extent that A.A. argues that he satisfies the doctrine adopted by the
Wisconsin Supreme Court, it is to support his argument that the application
of this statute is constitutional.

Accordingly, we do not consider whether A.A. is a “parent”
eligible to seek custody pursuant to HRS § 571-46(a)(1) or on any other
basis. It is noted that at least one jurisdiction has expanded the
definition of “parent” in a similar statute to include a partner of a
domestic partnership that agrees to conceive a child and to raise the child
together. See Brooke S.B. v. Elizabeth A. C.C., No. 91, 2016 WL 4507780
(N.Y. Aug. 30, 2016).

8
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

P.2d 43, 45 (1979) (per curiam). The trial court possesses

broad discretion in making custody decisions and in its

determination of what is in the best interests of the child.

Fujikane, 61 Haw. at 354, 604 P.2d at 45 (“It is clear that the

court below possesses wide discretion in making custody

decisions . . . .”). HRS § 571-46(a) provides standards that

apply to a court’s custody decision in proceedings involving a

dispute as to the custody of a minor child:

In awarding the custody, the court shall be guided by the
following standards, considerations, and procedures:

(1) Custody should be awarded to either parent or to both
parents according to the best interests of the child, and
the court also may consider frequent, continuing, and
meaningful contact of each parent with the child unless
the court finds that a parent is unable to act in the best
interest of the child;

(2) Custody may be awarded to persons other than the
father or mother whenever the award serves the best
interest of the child. Any person who has had de facto
custody of the child in a stable and wholesome home and is
a fit and proper person shall be entitled prima facie to
an award of custody;

(3) If a child is of sufficient age and capacity to
reason, so as to form an intelligent preference, the
child’s wishes as to custody shall be considered and be
given due weight by the court . . . .

HRS § 571-46(a)(1)-(3) (Supp. 2013).

Subsection (a)(1) of this statute concerns the

awarding of custody to the child’s parents and provides that

custody “should be awarded” to either or both parents according

to the best interests of the child. Additionally, the court may

consider continuing and meaningful contact of each parent with

the child unless the parent is unable to act in the best

9
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

interests of the child.7 In his petition for custody, A.A. does

not seek custody based on alleged parental status under

subsection (a)(1).

Subsection (a)(2), upon which A.A. relies, provides

that custody “may be awarded to persons other than the father or

mother whenever the award serves the best interest of the

child.” Subsection (a)(2) also creates a presumption in favor

of a person under certain circumstances: “Any person who has had

de facto custody of the child in a stable and wholesome home and

is a fit and proper person shall be entitled prima facie to an

award of custody.” Although “de facto custody” is not defined,

we interpret it to mean sole or shared physical custody in

combination with an assumption of incidents of legal custody

enumerated in HRS § 571-2, which include “the duty to protect,

train, and discipline the minor and to provide the minor with

food, shelter, education, and ordinary medical care.” In other

words, de facto custody is consistent with a parental role.

Accordingly, a person may establish a prima facie case

of de facto custody, by showing that the person (1) is a fit and

proper person (2) who has had de facto custody of the child (3)

7
“‘Meaningful contact’ means parent and child interactions,
activities, and experiences, performed together, which nurture the parent-
child attachment and relationship, while contributing to the child’s
development in a positive and effective manner.” HRS § 571-2 (2006 & Supp.
2011).

10
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

in a stable and wholesome home. HRS § 571-46(a)(2). If a

person is able to establish these three elements, then the

person has adduced prima facie evidence that awarding custody to

that person is in the best interests of the child. Nonetheless,

the family court ultimately has the discretion to determine the

custody award that would serve the best interests of the child

based on the entirety of the evidence presented.

Although the family court determined that HRS § 571-

46(a)(2) applies to this case, the court did not determine

whether or not A.A. established a prima facie case to an award

of custody based on de facto custody.8 However, the family court

did not make any particular findings that would contradict

A.A.’s claim of de facto custody pursuant to subsection (a)(2),

and A.A. provided evidence to support all three elements of

subsection (a)(2) in addition to evidence from Dr. Wyss that it

would be beneficial to Child to have contact with him. On the

8
Although we express no opinion as to whether A.A. established
prima facie that he had de facto custody of child pursuant to HRS § 571-
46(a)(2), it is noted that the record was sufficient to support a finding
that A.A. had de facto custody of Child because B.B. shared all parental
care, duties, and responsibilities with respect to Child with A.A. from
October 2011 to October 2013 and then continued to have actual joint custody
of Child until April 2014, pursuant to the written co-parenting agreement.
The family court’s findings would also support a determination that A.A.
provided a stable and loving home for Child, based on, inter alia, the
court’s findings regarding the period of joint custody and Dr. Wyss’s
testimony that termination of the attachment bond between A.A. and Child
would be psychologically harmful to Child. The findings that would support
the first two elements may also support a finding that A.A. was a fit and
proper person to have custody of Child given that he was involved in co-
parenting Child for the majority of Child’s life.

11
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

other hand, B.B. produced evidence, including through Dr. De

Costa’s testimony, that could be construed to support a finding

that A.A. is not a fit and proper person and that it would not

be in Child’s best interests for custody to be jointly awarded

to A.A.

In declining to apply subsection (a)(2), the family

court reasoned that A.A. did not adequately demonstrate by

strict scrutiny a compelling state interest that the statute was

constitutional as applied to him.9 The burden, however, is not

on A.A. to demonstrate the constitutionality of HRS § 571-

46(a)(2). Indeed, “every enactment of the legislature is

presumptively constitutional,” and the “party challenging the

statute has the burden of showing unconstitutionality.” State

v. Mueller, 66 Haw. 616, 627, 671 P.2d 1351, 1358 (1983)

(quoting Schwab v. Ariyoshi, 58 Haw. 25, 31, 564 P.2d 135, 139

(1977)). Thus, in this case, if joint custody were awarded to

A.A., then B.B. would be considered the challenger to HRS § 571-

46(a)(2), and B.B. would have the burden of establishing the

statute’s infringement on his constitutionally protected

parental rights. Id.

9
We review the family court’s conclusions of law, including
constitutional questions of law, de novo under the right/wrong standard. See
Doe v. Doe, 116 Hawaiʻi 323, 326, 172 P.3d 1067, 1070 (2007); In re Doe, 95
Hawaiʻi 183, 190, 20 P.3d 616, 623 (2001).

12
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

The family court’s analysis was directly contrary to

this widely accepted presumption that statutes are valid.

Accordingly, the family court erred in requiring that A.A.

establish the constitutionality of HRS § 571-46(a)(2) before its

application. The family court should have made findings and

conclusions with regard to whether A.A. satisfied the de facto

custody test of subsection (a)(2) and whether granting of joint

custody was in the best interests of Child.

B.B. argues that HRS § 571-46 prefers that custody be

awarded to the parents of a child and that a non-parent may only

be considered for custody if the court finds that the parent is

unable to act in the best interests of the child. We do not

agree with this rigid interpretation of HRS § 571-46, which is

contrary to the well-settled principle that “the paramount

consideration” in child custody cases is the best interests of

the child. Doe, 98 Hawaiʻi at 155, 44 P.3d 1085 at 1096. While

a preference inheres in HRS § 571-46(a)(1) that custody “should”

be awarded to the parents, nevertheless custody may be awarded

to persons other than a parent and the court “shall” consider

the child’s wishes if the child is of sufficient age and

capacity to reason. HRS § 571-46(a)(1)-(3). Implicit in B.B.’s

proffered interpretation is the concept that custody will be

given either to a parent or nonparent. However, in reality,

there may be instances where the child’s best interests are

13
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

served by joint custody where a fit parent and nonparent share

responsibilities for the child.

The court must always determine what would serve the

best interests of the child. HRS § 571-46 provides guidance to

the courts by way of standards, considerations, and procedures,

and ultimately, the court has the flexibility to fashion a

custody award that is in the best interests of the child. In

this case, the family court erred in concluding that A.A. was

required to establish, as a threshold matter, that the

application of HRS § 571-46(a)(2) to his claim for custody would

be constitutional. Because the court did not make a

determination as to whether A.A. established a prima facie case

of de facto custody under HRS § 571-46(a)(2) and did not make

findings of fact and conclusions on this ultimate issue, the

record is insufficient for appellate review of the custody

decision. Accordingly, the case must be remanded to the family

court for further proceedings.

B. B.B.’s Constitutionally Protected Parental Rights

In his answering brief, B.B. argues that HRS § 571-

46(a)(2) “is being utilized by [A.A.] to attempt to interfere

with [B.B.’s] right to raise his child and protect his child

from the conduct, belief, opinions, language, personality, and

14
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

demeanor of [A.A.].”10 In light of the remand of this case to

the family court, we address B.B.’s constitutional challenge to

HRS § 571-46(a)(2).11

B.B.’s constitutional argument raises questions

regarding whether HRS § 571-46(a)(2) unreasonably interferes

with B.B.’s decision as a parent to no longer share custody with

A.A.. Accordingly, we consider whether Hawaii’s de facto

custody provision--which uses a “best interests of the child

standard”--unconstitutionally infringes on a person’s parental

rights where the nonparent has had actual custody of the child

in a stable and wholesome home, is a fit and proper person, the

parent has voluntarily incorporated the nonparent into the

family unit sharing parental responsibilities and duties, and

the parties subsequently shared custody pursuant to a written

co-parenting agreement.

The Fourteenth Amendment to the United States

Constitution and article I, section 5 of the Hawaiʻi Constitution

provide that no person shall be deprived of “life, liberty, or

property without due process of law.” U.S. Const. amend. XIV, §

10
The record does not indicate whether B.B. notified the Attorney
General of the State of Hawaiʻi of his challenge to the constitutionality of
HRS § 571-46(a)(2) pursuant to his duty under Hawaiʻi Rules of Appellate
Procedure Rule 44.
11
For purposes of considering the constitutional issue raised by
B.B., we assume that A.A. satisfies the de facto custody provision. However,
as mentioned, we express no opinion as to whether A.A. satisfied the three
elements necessary to raise the de facto presumption.

15
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

1; Haw. Const. art. I, § 5. Under the Hawaiʻi Constitution, we

conduct a two-step inquiry in analyzing procedural due process

claims. We first consider whether a liberty or property

interest has been interfered with by the State, and second, we

determine what specific procedures are required to satisfy due

process. State v. Guidry, 105 Hawaiʻi 222, 227, 96 P.3d 242, 247

(2004). Similarly, when the Due Process Clause “is invoked in a

novel context,” the Supreme Court of the United States “begin[s]

the inquiry with a determination of the precise nature of the

private interest that is threatened by the State.” Lehr v.

Robertson, 463 U.S. 248, 256 (1983); see Washington v.

Glucksberg, 521 U.S. 702, 720 (1997) (noting that the court has

required “‘a careful description’ of the asserted fundamental

liberty interest” (quoting Reno v. Flores, 507 U.S. 292, 301

(1993))). It is only after that interest has been identified

that the court can “properly evaluate the adequacy of the

State’s process.” Lehr, 463 U.S. at 256.

Whether a parent has a constitutionally protected

liberty interest in deciding that a person who has “de facto

custody” of the child should no longer have custody is a matter

of first impression in this jurisdiction. It has long been

recognized that the due process clause protects certain liberty

interests that parents have in maintaining relationships with

their children and in directing their upbringing. See, e.g.,

16
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Troxel v. Granville, 530 U.S. 57, 65 (2000). Independent of the

United States Constitution, parents have a substantive liberty

interest in the care, custody, and control of their children

protected by the due process clause of article I, section 5 of

the Hawaiʻi Constitution and the right to privacy of article I,

section 6 of the Hawaiʻi Constitution. See Doe v. Doe, 116

Hawaiʻi 323, 334, 172 P.3d 1067, 1078 (2007) (“Parents’ right to

raise their children is protected under article I, section 6 of

the Hawaiʻi Constitution . . . .”); In re Doe, 99 Hawaiʻi 522,

533, 57 P.3d 447, 458 (2002) (“We affirm, independent of the

federal constitution, that parents have a substantive liberty

interest in the care, custody, and control of their children

protected by the due process clause of article 1, section 5 of

the Hawaiʻi Constitution.”).

Although due process jurisprudence recognizes a

substantive liberty interest in directing the upbringing of

one’s child without state interference, the right is largely

undefined. In Troxel v. Granville, the United States Supreme

Court reviewed the Washington Supreme Court’s determination that

a Washington visitation statute violated the United States

Constitution. A majority of the Court agreed to affirm the

Washington Supreme Court’s decision. The plurality opinion,

written by Justice Sandra Day O’Connor, found that the

Washington visitation statute was “breathtakingly broad” because

17
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

its language effectively permitted “any third party seeking

visitation to subject any decision by a parent concerning

visitation of the parent’s children to state-court review.” 530

U.S. at 67-68. The plurality opinion did not define the scope

of the parental right at issue in that case, and one common

thread that runs through nearly all of the six opinions written

in the Troxel case is that the parental right with respect to

visitation decisions remained undefined. See id. at 73 (“We do

not, and need not, define today the precise scope of the

parental due process right in the visitation context.”); id. at

78 (Souter, J., concurring) (“Our cases, it is true, have not

set out exact metes and bounds to the protected interest of a

parent in the relationship with his child . . . .”); id. at 88

(Stevens, J., dissenting) (“While this Court has not yet had

occasion to elucidate the nature of a child’s liberty interests

in preserving established familial or family-like bonds, it

seems to me extremely likely that, to the extent parents and

families have fundamental liberty interests in preserving such

intimate relationships, so, too, do children have these

interests, and so, too, must their interests be balanced in the

equation.” (citation omitted)); id. at 91-93 (Scalia, J.,

dissenting) (arguing that the constitution does not recognize

the right of a parent to direct the upbringing of their children

and indicating that he would not extend the theory of the cases

18
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

recognizing any such right “to this new context”); id. at at

100-01 (Kennedy, J., dissenting) (“In short, a fit parent’s

right vis-à-vis a complete stranger is one thing; another parent

or a de facto parent may be another. The protection the

Constitution requires, then, must be elaborated with care, using

discipline and instruction of the case law system.”). But see

id. at (Thomas, J., dissenting) (arguing that “parents have a

fundamental constitutional right to rear their children,

including the right to determine who shall educate and socialize

them”). Similarly, the scope of the parental right in the

context of custody proceedings between a parent and a nonparent

who has “de facto custody” of the child has not been defined by

the Supreme Court.

The Supreme Court’s cases regarding the interests of

parents in the care, custody, and control of their children may

be grouped into two categories: (1) cases involving a natural

parent’s right to parent a child and maintain the parent-child

relationship12 and (2) cases involving state interference with a

12
See Santosky v. Kramer, 455 U.S. 745, 768 (1982) (holding that a
state’s use of a “fair preponderance of the evidence” standard at a parental
rights termination proceeding violated the Due Process Clause); Quilloin v.
Walcott, 434 U.S. 246, 255 (1978) (holding that the natural father’s
substantive due process rights were not violated by application of the “best
interests of the child” standard where natural father had not previously
sought actual or legal custody of child); Stanley v. Illinois, 405 U.S. 645,
(1972) (holding that natural father “was entitled to a hearing on his fitness
as a parent before his children were taken from him and that, by denying him
a hearing and extending it to all other parents whose custody of their

(continued . . .)

19
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

parent’s decision regarding the child.13 This case does not call

into question the potential termination of B.B.’s parental

rights, but rather, it involves B.B.’s right to determine who

has custody and access to Child. Because the Court did not

define the parental right in Troxel, there are no Supreme Court

opinions discussing circumstances analogous to this case. See

supra notes 12-13.14

children is challenged, the State denied [father] the equal protection of the
laws guaranteed by the Fourteenth Amendment”).

13
See Troxel, 530 U.S. at 67-68 (holding as facially
unconstitutional a statute allowing any third party seeking visitation to
subject any decision by a parent concerning visitation of the parent’s
children to state-court review); Wisconsin v. Yoder, 406 U.S. 205, 234 (1972)
(holding that the First and Fourteenth Amendments prevented the State of
Wisconsin from compelling Amish parents to “cause their children to attend
formal high school at age 16”); Prince v. Massachusetts, 321 U.S. 158, 443-44
(1944) (holding that a state statute prohibiting children from distributing
magazines on the street did not violate child’s First Amendment rights or
child’s custodian’s First and Fourteenth Amendment rights to give child
religious training); Pierce v. Soc’y of the Sisters, 268 U.S. 510, 535 (1925)
(holding that a state statute requiring children to attend public school
“unreasonably interfere[d] with the liberty of parents and guardians to
direct the upbringing and education of children under their control”); see
also Parham v. J. R., 442 U.S. 584, 603 (1979) (holding that a state statute,
which allowed voluntary admission of minor children to mental hospitals by
parents or guardians, did not per se violate the children’s substantive due
process rights).
14
The Massachusetts Supreme Court observed that the following
principles clearly emerged from the Troxel plurality decision:

(i) reaffirmation that a parent’s liberty interest in child
rearing is indeed fundamental, and is certainly fundamental
in this context;

(ii) “any third party” should not be permitted to seek
visitation;

(iii) in determining whether grandparent visitation should
occur, there exists a “presumption that a fit parent will
act in the best interest of his or her child,” and the
decision of a fit parent concerning grandparent visitation
is entitled to considerable deference; and

(continued . . .)

20
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

In Doe, this court considered the constitutionality of

a statute allowing for any grandparent residing in the same

state of their grandchild to petition for visitation and

allowing the court to grant the petition so long as it was in

the best interests of the child.15 116 Hawaiʻi at 325, 172 P.3d

at 1069. Applying strict scrutiny, the court concluded that

“proper recognition of parental autonomy in child-rearing

decisions requires that the party petitioning for visitation

demonstrate that the child will suffer significant harm in the

absence of visitation before the family court may consider what

degree of visitation is in the child’s best interests.” Id. at

335-36, 172 P.3d at 1079-80. Accordingly, the court held that

the statute was facially unconstitutional because it did not

include the “harm to the child” standard required by the right

to privacy under the Hawaiʻi Constitution.16 Id. at 336; 172 P.3d

(iv) in determining whether grandparent visitation should
occur, the potential impact to the parent-child
relationship should be considered.

Blixt v. Blixt, 774 N.E.2d 1052, 1058-59 (Mass. 2002) (citations omitted)
(quoting Troxel, 530 U.S. at 67, 69).
15
The court also suggested that the statute was not facially
unconstitutional under the Due Process Clause of the Fourteenth Amendment.
See Doe, 116 Hawaiʻi at 333, 172 P.3d at 1077 (concluding that the grandparent
visitation statute “comport[ed] with the limited requirements expressed in
Troxel”).
16
Doe ruled that the statute was unconstitutional under article I,
section 6 of the Hawaiʻi Constitution only. See 116 Hawaiʻi at 335-36, 172
P.3d at 1079-80.

21
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

at 1080. Thus, a parent’s fundamental right to direct the

upbringing of his or her child was implicated “where a nonparent

third party petitione[d] for visitation,” and the State could

not interfere with the parent’s decision absent a finding that

the parent’s decision to deny access to the child would result

in harm to the child. Id.

Subsequently, the ICA considered whether the

application of the doctrine of equitable estoppel in a custody

proceeding infringed on a mother’s parental rights. See Inoue

v. Inoue, 118 Hawaiʻi 86, 101, 185 P.3d 834, 849 (App.), cert.

denied, 118 Hawaiʻi 194, 186 P.3d 629 (2008). In Inoue, the

family court equitably estopped the biological mother of a child

from denying that her husband was the father of her child for

the purposes of determining custody. Id. at 88, 185 P.3d at

836. The mother and her husband in Inoue met when she was

pregnant with the child. Id. at 88-89, 185 P.3d at 836-37. The

mother did not identify any father on the child’s original birth

certificate, but at some point after the birth of the child, the

child’s birth certificate was changed to reflect the husband as

the child’s father. Id. at 89, 185 P.3d at 837. The mother and

husband were subsequently married, had two additional children,

and lived together as a family until their separation seven

years later. Id. The family court in Inoue awarded husband

sole legal and physical custody of all three children, while

22
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

granting mother visitation rights. Id. at 91, 185 P.3d at 839.

The mother appealed the family court’s decision to the ICA

arguing that the family court could not award husband custody of

the oldest child because he was not the child’s legal father and

she was not unfit. Id. at 92, 185 P.3d at 840.

The ICA concluded that the family court did not err in

holding that the husband was the legal father of the child under

Hawaii’s presumption of paternity statute and that the mother

was estopped from challenging her husband’s parentage of the

child. Id. at 94, 185 P.3d at 842. The ICA also considered

whether the application of the doctrine of equitable estoppel

infringed on the mother’s parental rights under a plain error

standard of review. Id. at 99-101, 185 P.3d at 847-49. The ICA

concluded that the application of the doctrine of equitable

estoppel did not infringe on the mother’s liberty interests

because she voluntarily rendered her parental rights with

respect to the child “less exclusive and less exclusory” with

regard to her husband. Id. at 101, 185 P.3d at 849 (quoting

Rubano v. DiCenzo, 759 A.2d 959, 976 (R.I. 2000)). The ICA

reasoned,

By marrying Egan and then adding his name to Child One’s
birth certificate, Gina created the circumstances under
which Egan became Child One’s “legal father.” By
representing to him that he had adopted Child One when he
allowed his name to be added to the certificate, Gina led
Egan to take no action to further investigate or establish
his status as Child One’s father. Finally, Gina allowed
Egan to assume the role of Child One’s father and to become
Child One’s psychological parent.

23
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Id. at 100-01, 185 P.3d at 848-49 (footnote omitted).

Inoue relied on the Rhode Island Supreme Court’s

decision in Rubano, which concerned two women who agreed to

become the parents of a child. 759 A.2d at 961. They arranged

for one of them to conceive via artificial insemination, and

they raised the child together for four years while living

together as a family in Massachusetts. Id. They gave the child

both of their last names separated by a hyphen on the child’s

birth certificate and sent out printed birth announcements

identifying both of them as the child’s parents, although the

parental status was never legally settled by adoption. Id.

When the couple separated, the biological mother took the child

with her to Rhode Island, and, initially, the biological mother

agreed to a visitation schedule for her former partner to see

the child. Id. at 961. Later, when the biological mother was

resistant to the visitation arrangements, the former partner

initiated legal proceedings seeking to establish her de facto

parental status and obtain court-ordered visitation. Id. at

961-62. The parties negotiated a compromise that was embodied

in a consent order, specifying that the former partner would

have permanent visitation with the child on a periodic basis in

exchange for waiving any claim to parent the child. Id. at 962.

In later proceedings, the biological mother asserted that the

court lacked jurisdiction to enter the consent order. Id.

24
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

The Supreme Court of Rhode Island considered whether

the biological mother had a protected liberty interest under the

Due Process Clause of the Fourteenth Amendment to terminate the

relationship between her former partner and child. The Rhode

Island court concluded that the biological mother rendered her

own parental rights with respect to her child “less exclusive

and less exclusory” than they otherwise would have been had she

not “by word and deed” allowed her former partner to establish a

parental bond with the child and also agreed to allow

visitation. Id. at 976. The court reasoned that “the mere fact

of biological parenthood, even when coupled with the biological

parent’s ongoing care and nurture of the child and that parent’s

fundamental right . . . , does not always endow the biological

parent with the absolute right to prevent all third parties from

ever acquiring any parental rights vis-à-vis the child.” Id.

The Inoue and Rubano decisions are consistent with the

United States Supreme Court’s cases defining the parental

liberty interest. Constitutionally protected parental rights

are not based solely on legal or biological ties, and the

Supreme Court has recognized “that the rights of the parents are

a counterpart of the responsibilities they have assumed.” Lehr,

463 U.S. at 257. Stated another way, “A parent’s rights with

respect to her child have thus never been regarded as absolute,

but rather are limited by the existence of an actual, developed

25
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

relationship with a child, and are tied to the presence or

absence of some embodiment of family.” Troxel, 530 U.S. at 88

(Stevens, J., dissenting). The Supreme Court has recognized

that “[t]he importance of the familial relationship, to the

individuals involved and to the society, stems from the

emotional attachments that derive from the intimacy of daily

association, and from the role it plays in ‘promot[ing] a way of

life’ through the instruction of children as well as from the

fact of blood relationship.’” Lehr, 463 U.S. at 261 (second

alteration in original) (quoting Smith v. Org. of Foster

Families for Equality & Reform, 431 U.S. 816, 844 (1977)); see

also Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (holding that

“best interests of the child standard” did not violate a natural

father’s parental rights in adoption proceedings that terminated

his parental rights where natural father did not marry the

mother and had not at any time sought actual or legal custody of

his child).

The scope of parental rights is also defined in

reference to the State’s authority and duty to protect children

in addition to the rights of children. See Troxel, 530 U.S. at

88 (Stevens, J., dissenting) (observing that limitations on

parental rights “have arisen, not simply out of the definition

of parenthood itself, but because of [the Supreme Court’s]

assumption that a parent’s interests in a child must be balanced

26
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

against the State’s long-recognized interests as parens patriae

and, critically, the child’s own complementary interest in

preserving relationships that serve her welfare and protection”

(citations omitted)). Indeed, with regard to the Troxel

decision, a majority of the court contemplated that even where

the parent has a developed, legal parent-child relationship with

the child, there may be special factors that justify state

interference. See Troxel, 530 U.S. at 68, 73 (plurality)

(declining to define the precise scope of the parental due

process right, relying instead on the “sweeping breadth” of the

statute and application of “broad, unlimited power,” and noting

the absence of “special factors that might justify the State’s

interference”); id. at 89 (Stevens, J., dissenting) (“The

constitutional protection against arbitrary state interference

with parental rights should not be extended to prevent the

States from protecting children against the arbitrary exercise

of parental authority that is not in fact motivated by an

interest in the welfare of the child.”); id. at 99 (Kennedy, J.,

dissenting) (“In the design and elaboration of their visitation

laws, States may be entitled to consider that certain

relationships are such that to avoid the risk of harm, a best

interests standard can be employed by their domestic relations

courts in some circumstances.”); cf. id. at 92 (Scalia, J.,

27
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

dissenting) (stating that he would not extend the theory of

parental rights to extend to visitation decisions).

Relying on the plurality in Michael H. v. Gerald D.,

491 U.S. 110 (1989), the Rhode Island Supreme Court noted that

“under certain circumstances, even the existence of a developed

biological parent-child relationship . . . will not prevent

others from acquiring parental rights vis-à-vis the child.”

Rubano, 759 A.2d at 974; see also Troxel, 530 U.S. at 87-88

(Stevens, J., dissenting) (discussing Michael H.). Indeed, as

Justice Kennedy stated in his dissenting opinion in Troxel,

“Cases are sure to arise--perhaps a substantial number of cases-

-in which a third party, by acting in a caregiving role over a

significant period of time, has developed a relationship with a

child which is not necessarily subject to absolute parental

veto.” 530 U.S. at 98 (Kennedy, J., dissenting) (citing Michael

H., Quillon, and Lehr); see also id. at 64 (plurality)

(“[P]ersons outside the nuclear family are called upon with

increasing frequency to assist in the everyday tasks of child

rearing.”). Accordingly, “a fit parent’s right vis-à-vis a

complete stranger is one thing; her right vis-à-vis another

parent or a de facto parent may be another.” Id. at 100-101

(Kennedy, J., dissenting).

In this case, the parties made a joint decision to

adopt and raise Child. Together, the parties named Child,

28
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

giving her each of their last names, and they lived together

with B.B.’s teenage son as a family unit for a two-year period.

From the time she could talk, Child referred to B.B. as “Papa”

and A.A. as “Daddy,” and they jointly shared all parental care,

duties, and responsibilities for Child from the time she was one

month old. Although A.A. and B.B. intended that A.A. would

adopt Child and retained an attorney to accomplish the adoption,

the adoption never occurred. Additionally, following their

separation, the parties continued to attend counseling together

and entered into a 50/50 written co-parenting agreement.

Accordingly, it appears from the family court’s findings that

B.B. voluntarily incorporated A.A. into the family unit and

encouraged him to share parental responsibilities and custody of

Child.

As the mother in Inoue facilitated the “circumstances

under which [her husband] became [her oldest child’s] ‘legal

father,’” B.B. voluntarily shared custody of Child with A.A.

and, thus, made his own parental rights less exclusive vis-à-vis

A.A. See Inoue, 118 Hawaiʻi at 101, 185 P.3d at 849; see also

530 U.S. at 98 (Kennedy, J., dissenting) (“[A] fit parent’s

right vis-à-vis a complete stranger is one thing; her right vis-

29
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

à-vis another parent or a de facto parent may be another.”).17

The circumstances of this case are entirely distinguishable from

those governed by the grandparent visitation statute considered

in Doe. See 116 Hawaiʻi at 325, 172 P.3d at 1069. In this case,

B.B. voluntarily allowed A.A. to share physical custody of Child

in addition to sharing the duties and responsibilities for

parenting child, and thus the circumstances do not implicate the

17
Cf. Smith v. Guest, 16 A.3d 920, 931 (Del. 2011) (holding that de
facto parent statute did not violate the due process rights of child’s other
legal parent because a de facto parent would also be a “legal ‘parent’” that
would share a “co-equal ‘fundamental parental interest’” in raising the child
with the other parent); C.E.W. v. D.E.W., 845 A.2d 1146, 1152 (Me. 2004)
(holding that person’s status as the de facto parent of a child authorized
the court to consider an award of parental rights and responsibilities to the
person as a parent based on its determination of the best interest of the
child); Rubano, 759 A.2d at 974 (“[U]nder certain circumstances, even the
existence of a developed biological parent-child relationship . . . will not
prevent others from acquiring parental rights vis-à-vis the child.”); Brooke
S.B. v. Elizabeth A. C.C., No. 91, 2016 WL 4507780 (N.Y. Aug. 30, 2016)
(expanding the definition of “parent” to include a partner of a domestic
partnership that agrees to conceive a child and to raise the child together);
In re Parentage of L.B., 122 P.3d 161, 177 (Wash. 2005) (“We thus hold that
henceforth in Washington, a de facto parent stands in legal parity with an
otherwise legal parent, whether biological, adoptive, or otherwise.”); In re
Custody of B.M.H., 315 P.3d 470, 478 (Wash. 2013) (en banc) (“The de facto
parentage doctrine incorporates constitutionally required deference to
parents by requiring that the biological or legal parent consent to and
foster the parentlike relationship. Once a petitioner has made the threshold
showing that the natural or legal parent consented to and fostered the
parent-like relationship, the State is no longer ‘interfering on behalf of a
third party in an insular family unit but is enforcing the rights and
obligations of parenthood that attach to de facto parents.’” (quoting In re
Parentage of L.B., 122 P.3d 161 (Wash. 2005) (en banc))); Randy A.J. v. Norma
I.J., 655 N.W.2d 195, 201 (Wis. 2002) (noting that under Wisconsin’s
equitable parent doctrine, “[o]nce a court determines that a party is an
equitable parent, there is no distinction between the equitable parent and
any other parent; each is endowed with the same rights and responsibilities
of parenthood”), aff’d, 677 N.W.2d 630.

30
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Hawaiʻi Constitution’s right to privacy as the grandparent

statute in Doe did.18

Additionally, we cannot conclude that B.B. has

established the statute is facially unconstitutional. See

United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial

challenge to a legislative Act is, of course, the most difficult

challenge to mount successfully, since the challenger must

establish that no set of circumstances exists under which the

Act would be valid.”). The de facto custody provision of HRS §

571-46(a)(2) simply does not have the broad sweep that the

grandparent visitation statute in Doe had. Indeed, HRS § 571-

46(a)(2) is one of several “standards, considerations, and

procedures” that HRS § 571-46 provides for family courts tasked

with handling custody and visitation disputes; it is but one

tool in a court’s toolbox for navigating the varying and complex

circumstances that may arise when custody to a child is in

dispute. Additionally, HRS § 571-46 includes subsection (a)(1),

which provides custody should be awarded to either parent or to

both parents according to the best interests of the child, and

18
Our decision is based on the circumstances presented by this
case. We note that a parent does not relinquish his or her parental rights
by merely relying on childcare assistance from others. As stated, de facto
custody is not established by mere physical custody of a child. Nonetheless,
we decline to adopt a bright line rule regarding the extent of a parent’s
protected liberty interest as “the constitutional protections in this area
are best ‘elaborated with care’” on a case-by-case basis. See Troxel, 530
U.S. at 73 (plurality) (quoting id. at 101 (Kennedy, J., dissenting)).

31
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

importantly, HRS § 571-46(a)(2) may also apply under

circumstances where no parent or no fit parent seeks custody of

the child. HRS § 571-46 is therefore notably distinguishable

from the grandparent visitation statute in Doe. Indeed, the

apparent purpose of the statute in Doe was to provide

grandparents a means to circumvent the decisions of parents

based on the legislature’s finding that “grandparents play a

significant role in the lives of minor children and should be

allowed reasonable visitation rights so long as it is in the

best interests of the child.” Doe, 116 Hawaiʻi at 332 n.6, 172

P.3d at 1076 n.6 (quoting Sen. Stand. Comm. Rep. No. 1053, in

1993 Senate Journal, at 1154). The grandparent visitation

statute was facially invalid as it undermined a parent’s

judgment to not allow grandparents access to one’s child based

merely on a finding that grandparent visitation was in the

child’s best interests. Id. (“Indeed, there can be no doubt

that the legislature intended that visitation, if found by a

court to be in the best interests of the child, may be ordered

over a parent’s objection”); see Troxel, 530 U.S. 57, 67, 120 S.

Ct. 2054, 2061, 147 L. Ed. 2d 49 (2000) (“[I]n practical effect,

in the State of Washington a court can disregard and overturn

any decision by a fit custodial parent concerning visitation

whenever a third party affected by the decision files a

visitation petition, based solely on the judge’s determination

32
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

of the child’s best interests.”). While there certainly may be

situations where a family court’s application of HRS § 571-

46(a)(2) may violate a parent’s constitutionally protected

liberty interests, we do not conclude that the statute is

facially invalid as the grandparent visitation statute in Doe

was.

In distinguishing Inoue, the family court placed great

emphasis on the fact that the parties never married or entered

into a civil union. While it is true that the Inoue opinion

discusses the fact that the parties were married in its

analysis, it was important only because marriage was relevant to

the paternity statute that was specifically challenged by the

mother in Inoue.19 See Inoue, 118 Hawaiʻi at 94, 185 P.3d at 842.

In that case, the biological mother’s husband and the child had

a presumptive “parent child relationship” pursuant to HRS § 584-

4(a)(3)(B) because of the subsequent marriage of the parties and

19
HRS § 584-4(a)(3)(B) (2006) provides,

A man is presumed to be the natural father of a child if:

. . .

After the child’s birth, he and the child’s natural mother
have married, or attempted to marry, each other by a marriage
solemnized in apparent compliance with law, although the
attempted marriage is or could be declared invalid, and:

. . .

With his consent, he is named as the child’s father on the
child’s birth certificate . . . .

33
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

inclusion of husband on the birth certificate. Id. Thus,

marriage was an essential element of the statute challenged by

the mother in Inoue, and her voluntary creation of the

circumstances giving rise to the presumptive parent-child

relationship was important to the ICA, not the existence of a

marriage itself. See id. at 100, 185 P.3d at 848. Indeed,

Inoue found the reasoning of the Rubano case persuasive, see

id., although the parties were not married and the relationship

of the parties was not discussed as an essential fact. See

Rubano, 759 A.2d at 976. The heart of the Rubano decision

concerned the relationship of the parties with the child--not

the relationship between the parties. See id. at 974. In any

event, marriage is not an element of the de facto presumption of

HRS § 571-46(a)(2), the provision on which A.A. bases his claim

for joint custody of Child.20

20
Application of the family court’s marriage requirement would mean
that a grandparent or other family member, such as a hānai parent, would
never be able to establish a de facto custodial relationship with a child so
long as the biological parent remains in the child’s life, even where the
child views the third party as his or her only parental figure.

By extension, we do not agree with B.B.’s contention that
application of the de facto custody provision would create significant
burdens that would apply to all domestic relationships where a single parent
is involved as this is not a case where the parties simply lived together
with a child. See State v. Sturch, 82 Hawaiʻi 269, 274, 921 P.2d 1170, 1175
(App. 1996) (“A person to whom a statute may be constitutionally applied
cannot challenge the statute on the ground that it may conceivably be applied
unconstitutionally to others.” (quoting State v. Kaneakua, 61 Haw. 136, 143,
597 P.2d 590, 594 (1979)). Indeed, we do not believe a person would be
considered a “proper” person to have custody of the child under HRS § 571-
46(a)(2) where the person’s sole connection to the child is a relationship
with the parent. Additionally, we note that living in a household with a

(continued . . .)

34
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Therefore, because B.B. permitted A.A. to share

physical custody of Child in addition to the parenting

responsibilities and duties with regard to Child, B.B. does not

have a protected privacy interest in excluding A.A. from Child’s

life under the Due Process Clause of the Fourteenth Amendment or

the Hawaiʻi Constitution’s due process and privacy protections.

As such, B.B. has not demonstrated that the application of HRS §

571-46(a)(2) under the circumstances of this case would

implicate his parental rights protected under the federal or

Hawaiʻi constitutions.

Given B.B. has not established that HRS § 571-46(a)(2)

impacted a protected liberty interest nor a privacy interest

under the Hawaiʻi Constitution, the statute’s prima facie de

facto provision, which includes the best interests of the child

standard, satisfies due process. See HRS § 571-46(a)(2).

Indeed, HRS § 571-46(a)(2) provides B.B. with ample protections

as he has not demonstrated the implication of a protected

liberty interest. HRS § 571-46(a)(1) favors the awarding of

custody to the child’s parents, providing that custody “should

be awarded to either or both parents,” and it also provides for

child is not equivalent to having custody of a child although it may be
relevant to the issue.

Additionally, B.B.’s contention that the absence of a legal
financial responsibility upon A.A. to support Child renders him ineligible to
be awarded custody is unsupported by HRS § 571-46(a)(2).

35
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

the maintenance of meaningful contact between the parent and

child unless the parent “is unable to act in the best interest

of the child.” HRS § 571-46(a)(2) states that custody “may” be

awarded to a person who is not a parent “whenever the award

serves the best interest of the child,” and it also creates a

presumption in favor of awarding custody under limited

circumstances to a person who has de facto custody.

Accordingly, the de facto presumption, which is also subject to

the best interests of the child standard, would only apply when

the nonparent custodian is able to demonstrate that he or she

(1) has had “de facto custody” of the child (2) in a stable and

wholesome home and that (3) the custodian is a fit and proper

person. Given that no protected liberty interest is

demonstrated by B.B., the statute satisfies due process as

applied in this case.21 B.B. has therefore not established that

an award of custody to A.A. under HRS § 571-46(a)(2) would

21
The adequacy of the statute is evaluated in reference to whether
a significant liberty interest is implicated. See Guidry, 105 Hawaiʻi at 227,
96 P.3d at 247; see also Lehr, 463 U.S. at 256. The Due Process Clause
“provides heightened protection against government interference with certain
fundamental rights and liberty interests.” Troxel, 530 U.S. at 65
(plurality). As we conclude that B.B.’s fundamental parental rights are not
implicated under the circumstances of this case, we need not apply a
heightened scrutiny in evaluating whether HRS § 571-46(a)(2) satisfies due
process. Cf. Doe, 116 Hawaiʻi at 335, 172 P.3d at 1079 (applying strict
scrutiny in determining that grandparent visitation statute was facially
unconstitutional under the Hawaiʻi Constitution’s right to privacy).

36
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

impair his parental rights under the federal or Hawaiʻi

constitutions.22

III. CONCLUSION

For the reasons discussed, the family court

misapprehended the law when it required A.A. to establish that

the application of HRS § 571-46(a)(2) would be constitutional if

applied to his request for joint custody of Child. The plain

language of HRS § 571-46(a)(2) contemplates standing to seek

custody when a person has had “de facto custody” of a child and

meets the other requirements of HRS § 571-46(a)(2). Further, we

hold that B.B. failed to establish that the application of HRS §

571-46(a)(2) to this case would infringe on his fundamental

liberty interests or otherwise violate his right to privacy

under the Hawaiʻi Constitution.23 Accordingly, we remand the case

22
Although it is not necessary to address in this case, it is noted
that the State has a compelling state interest in maintaining the presence of
a child in a stable and wholesome home with fit and proper persons. The
State’s compelling interest and duty with regard to the welfare of children
has long been recognized in this jurisdiction. See In re Guardianship of
Thompson, 32 Haw. 479, 486 (1932). In addition, HRS § 571-46(a)(2) protects
the interests and rights of children. See Troxel, 530 U.S. at 89 n.9
(collecting cases demonstrating that children have constitutionally protected
rights).

23
We reject A.A.’s evidentiary challenges to the expert testimony
presented at the hearing. Given her education and experience, Dr. De Costa
was qualified to testify as an expert in the field of family behaviors and in
the relationship of children with their families. See HRS § 571-46(a)(5)
(providing that the court may decide that qualified “expert’s testimony is
relevant to a just and reasonable determination of what is for the best
physical, mental, moral, and spiritual well-being of the child whose custody
is at issue”). The hypothetical opinion elicited from Dr. De Costa was
admissible under Hawaiʻi Rule of Evidence (HRE) Rule 703. See HRE Rule 703
cmt (1993). Dr. De Costa’s opinions regarding the potential harm to Child as

(continued . . .)

37
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

for proper application of HRS § 571-46(a)(2), including a

determination as to whether A.A. satisfies the three elements of

HRS § 571-46(a)(2) and, if so, for a custody award in Child’s

best interests.

Accordingly, the family court’s December 11, 2014

“Findings of Fact, Conclusions of Law; Order/Final Judgment” is

vacated, and the case is remanded to the family court for

further proceedings consistent with this opinion.

Michael S. Zola /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian J. De Lima, /s/ Sabrina S. McKenna
Francis R. Alcain and
Justin P. Haspe /s/ Richard W. Pollack
for respondent /s/ Michael D. Wilson

a result of the termination of the relationship between A.A. and B.B. and the
doctor’s concerns about Child having a continued relationship with A.A. were
relevant, within the doctor’s expertise, and would assist the court in
determining Child’s best interests. See HRS § 571-46(a)(5). Dr. De Costa’s
testimony regarding the mental health of B.B.’s son, including her diagnosis,
was admissible as a proper foundation was laid, and it was relevant to the
court’s consideration of the best interests of Child and whether A.A. was a
fit and proper person for purposes of applying the de facto custody
presumption of HRS § 571-46(a)(2). Dr. De Costa’s testimony regarding B.B.’s
son’s test scores was admissible under HRE Rule 703 without their
introduction into evidence. And, the family court’s finding of fact
regarding Dr. De Costa’s testimony did not misstate her testimony and was
supported by the record.

With regard to Dr. Wyss’s testimony, it appears that the court
considered the testimony of Dr. Wyss, but it found Dr. De Costa’s testimony
more compelling, which is within the province of the trial court. See Exotics
Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116 Hawaiʻi. 277, 299, 172
P.3d 1021, 1043 (2007). Lastly, any error by the family court in restricting
Dr. Wyss’s testimony to the contents of his report, or in not admitting his
progress notes, was harmless because Dr. Wyss was permitted to testify that
he was aware of the sex-abuse allegations against A.A. and that he did not
believe that A.A. posed a threat of abuse to Child. However, if further
evidentiary proceedings are held on remand, the family court may revisit its
ruling regarding the proffered evidence.

38