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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
13-APR-2020
08:12 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
DJ, Respondent/Plaintiff-Appellant,
vs.
CJ, Petitioner/Defendant-Appellee.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; FC-D. NO. 12-1-6689)
APRIL 13, 2020
McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J.,
CONCURRING AND DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
In their 2012 divorce, CJ (Mother) and DJ (Father) were
granted joint legal and physical custody of their two minor
children. In 2016, Mother filed a motion for post-decree relief
in the Family Court of the First Circuit (“family court”),
requesting sole physical custody and joint legal custody, so
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that she could relocate from Hawaiʻi to North Carolina with the
children and their soon-to-be-stepfather.
More than six months after Mother filed her motion for
post-decree relief, the family court held a half-day trial on
the motion. One week before the trial, a social worker in the
family court’s Custody Investigations Unit (“CIU”) completed a
custody evaluation investigation and report (“CIU Report” or
“Report”). It is unclear when the parties received the Report.
Both Mother and Father proceeded to trial without attorneys.
Father, who had a Tagalog interpreter available at trial,
experienced difficulty cross-examining several witnesses. When
the family court indicated it was calling the CIU social worker
as a witness, Father orally requested a continuance so that he
could obtain the assistance of an attorney. The family court
denied Father’s oral motion as untimely, then ruled that it was
in the children’s best interests to relocate with Mother.
On appeal, Father argued that the family court abused its
discretion in: (1) denying his motion for a continuance at
trial, and (2) considering the CIU Report in granting Mother’s
motion for post-decree relief. The Intermediate Court of
Appeals (“ICA”) majority vacated the family court’s ruling,
holding that the family court abused its discretion in denying
Father’s motion for a continuance to seek an attorney. The
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majority did not address whether the family court abused its
discretion in considering the CIU Report.
Mother’s application for writ of certiorari presents two
questions: (1) whether the ICA erred in holding that the family
court abused its discretion in denying Father’s motion for a
continuance at trial; and (2) if so, whether the family court
abused its discretion in considering the CIU Report in ruling
upon Mother’s motion for post-decree relief.
The main populated Hawaiian Islands are some of the most
remote populated land masses in the world, located about 2,400
miles from California and 4,000 miles from Japan. When a child
relocates out-of-state with the other parent, even if a court
order allows for visitation during summer or winter vacations,
travel expenses make regular continued contact with the child
quite difficult, if not impossible, for the great majority of
Hawaiʻi parents. A proposed out-of-state relocation with a child
can therefore significantly affect a parent’s substantive
liberty interest in the care, custody, and control of a child.
Whether or not to allow relocation, however, must be based on a
determination of the child’s best interests, which includes a
child’s right to parental contact.
Based upon the important interests involved, for the
reasons discussed below, the ICA majority did not err by holding
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that the family court abused its discretion in denying Father’s
request for a continuance to seek the assistance of an attorney.
Father not only had English language difficulties, but was not
able to effectively exercise his statutory right to cross-
examine the CIU social worker on the detailed CIU Report, which
had been prepared only one week before trial, and may not have
been received by Father until the day of trial.
On the other hand, with respect to the second question on
certiorari, the family court did not abuse its discretion in
considering the CIU Report. Family courts should consider CIU
or any other available family court social worker reports in
making these difficult decisions regarding whether or not to
allow relocation. Family courts also have the discretion to
appoint guardians ad litem for children in relocation cases
pursuant to HRS § 571-46(a)(8) (2006 & Supp. 2013).
In summary, we affirm the ICA’s February 8, 2018 Amended
Judgment on Appeal remanding this case to the family court for
further proceedings. The family court is to conduct further
proceedings consistent with this opinion.
II. Background
A. Factual background and prior divorce proceedings
Father and Mother were both born in the Philippines.
Father moved to Hawaiʻi in 1997. Father met Mother in the
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Philippines in 2007 while vacationing there, and Mother became
pregnant. After Father returned to Hawaiʻi, he petitioned for
Mother to come as his fiancée. Mother gave birth to their son
in the Philippines in February 2008 (“Son”), then moved to
Hawaiʻi in 2009. Father and Mother were married in May 2009, and
they had another child, a daughter, born in January 2012
(“Daughter”).
Several weeks after Daughter’s birth, Mother and Daughter
traveled to the Philippines for Daughter’s baptism. Father
arrived later. Due to marital issues, Father returned to Hawaiʻi
alone in March 2012 to return to work, and Mother and Daughter
returned in April.
Through an attorney, Father filed for divorce on May 11,
2012. At the time, he was employed as a housekeeper at the
Sheraton Waikīkī Hotel. Mother was employed as a certified
nurse’s aide at a Hawaiʻi Kai retirement community and as a
cashier at Times Supermarket in Kaimukī.
Sometime thereafter, Mother moved into the Pauoa home of a
married couple to serve as caretaker for the wife’s mother. The
wife, L.C., worked as a legal assistant and the husband, M.C.,
was a retired Honolulu Police Department Lieutenant.
At a hearing on August 22, 2012, Father and Mother, through
their attorneys, placed their agreements regarding divorce terms
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on the record. With respect to the children, Father and Mother
agreed to joint legal and joint physical custody. They also
orally agreed that neither party could leave Hawaiʻi with the
children without written consent of the parties or a court order.
The October 25, 2012 Decree Granting Absolute Divorce and
Awarding Child Custody (“Divorce Decree”) reflected the
agreement for joint legal and physical custody. With respect to
removal of the children from Hawaiʻi, the Divorce Decree provided,
“The parties shall provide the other party sixty (60) days
written notice prior to removing the minor children outside the
City and County of Honolulu or relocating the minor children to
another state. If the other party consents then that party
shall provide written approval allowing the removal of the minor
children.”
By the date of the October 25, 2012 Divorce Decree, Mother
had met a nurse at Tripler Army Medical Center, with whom she
entered into a relationship (“Boyfriend,” “Fiancé,” or
“Stepfather”). After Boyfriend’s discharge from the Army, he
relocated to Durham, North Carolina. He and Mother were married
there in April 2016.
After the Divorce Decree, Father filed a pro se motion on
March 14, 2013, requesting that child exchanges occur at a
police station. This motion was orally denied at a hearing on
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June 19, 2013. On June 28, 2013, Mother filed a motion
requesting that the court authorize Boyfriend and the couple
with whom she lived to conduct child exchanges with Father when
Mother was working and to order Father to communicate with her
regarding Son’s immigration application. This motion was
granted over Father’s opposition.
More than two years later, on November 10, 2015, Father
filed a motion regarding the children’s doctors and medical and
immigration expenses, which the parties resolved at the December
16, 2015 hearing, with Mother represented by counsel; as part of
this order, Father and Mother both agreed to attend parenting
counseling.
Although Father had been represented by an attorney in the
divorce, in the post-divorce hearings, he appeared pro se each
time.
B. Subject custody/relocation proceedings
On February 1, 2016, Mother filed a motion for post-decree
relief requesting that she be granted sole physical custody of
Son and Daughter, then about eight and four years old, subject
to Father’s reasonable visitation rights. Mother’s motion
asserted that a change in custody was appropriate because she
was “planning on relocating to another state and believe[d] that
it [was] in the children’s best interest to reside with her.”
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In her declaration, Mother explained that she intended to
relocate to Durham, North Carolina with her children, where she
would live with Boyfriend, who was by then her Fiancé, and her
parents (the children’s maternal grandparents). Mother
explained that Fiancé had already relocated to North Carolina to
start a new career, and had secured temporary housing for
himself, Mother, the children, and Mother’s parents.
Mother advanced several reasons as to why she believed that
the children’s relocation to Durham was in their best interests.
She averred that the intended neighborhood of relocation was
safe, and that the area provided the children with opportunities
to attend top-rated elementary schools and participate in
excellent extracurricular activities. Additionally, Mother
stated that her parents and Fiancé’s extended family, who also
lived in the Durham area, would be able to help raise the
children and support Mother. Lastly, Mother contended that
Father had been inconsistent in caring for the children, that he
did not place the children’s needs first, and that if the
children were not permitted to relocate with her, Father would
“continue to alienate [Mother] and cut off or minimize any
contact” that she would be able to have with her children.
Mother asserted that if the children were allowed to relocate
with her, she would ensure they maintained a relationship with
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Father by having regular contact with him, and by allowing them
to visit Father during their school breaks.
Proceeding pro se, Father filed a response to Mother’s
motion for post-decree relief on February 18, 2016. Father
argued that relocation to Durham would not be in the children’s
best interests because (1) Mother’s relationship status and
living situation in Durham would be unstable, as Fiancé could
leave her at any time; (2) Father did not trust that Fiancé
would care for his children and that they would be safe in his
care; and (3) the children already had an established network of
family support in Hawaiʻi, where they had developed positive
relationships with their paternal cousins and aunt. Father also
asserted that Mother did not have proper parenting skills, and
that she had raised the children with improper morals by
encouraging them to damage Father’s property and to misbehave
towards others.
The family court1 held an initial hearing on Mother’s motion
for post-decree relief on March 16, 2016. Mother was
represented by two attorneys, and Father appeared pro se.
Mother’s counsel clarified that she only sought sole physical
1
The Honorable Lanson K. Kupau presided over the hearings held on March
16, 2016; March 30, 2016; and June 8, 2016.
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custody, and was not seeking to set aside joint legal custody.
At the hearing, the family court stated it was unable to
determine whether relocation to Durham was in the children’s
best interests based on the information in the file, and opined
that a custody evaluator or fact finder would be able to provide
the family court with information to render an informed decision.
The parties then agreed to the appointment of a custody
evaluator or fact finder, and they agreed to split the costs.
When the family court tried to ascertain whether the
parties preferred a custody evaluator or a fact finder and who
the parties wanted to serve in either capacity, Father requested
the assistance of a Tagalog interpreter to ensure that he could
make an informed decision. In light of Father’s request for an
interpreter, the family court continued the hearing on Mother’s
motion for post-decree relief to March 30, 2016.
On March 22, 2016, Father filed a second response to
Mother’s motion for post-decree relief, stating he no longer
desired to split the costs of a custody evaluator. He asserted
that an investigation was not necessary, and that if Mother
wanted an investigation, she should bear the costs. He also
expressed his opinion that Mother’s request was a waste of time
and that it should be dismissed.
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At a further hearing on March 30, 2016, Mother was
represented by counsel, Father was again pro se, and a Tagalog
interpreter was present for Father. At the hearing, Father
reiterated that he did not want to bear the costs of a fact
finder. After some discussion, the parties ultimately agreed to
the appointment of a fact finder and that Mother would pay for
his services. The family court ordered that the hearing on
Mother’s motion for post-decree relief be continued to July 6,
2016 to afford the parties a sufficient opportunity to receive
and review the fact finder’s report and resolve the matter.
On May 25, 2016, however, Mother, now also proceeding pro
se, filed an ex parte motion and declaration to advance the
hearing on her motion for post-decree relief. Mother requested
that the hearing be advanced because she decided not to proceed
with a fact finder because the fees were much greater than she
had anticipated and she needed that money to enroll Son in a
private school in North Carolina to assist in his academic
adjustment. The family court2 approved Mother’s motion to
advance and scheduled a hearing for June 8, 2016.
2
The Honorable Matthew J. Viola granted Mother’s ex parte motion to
advance the hearing on her motion for post-decree relief.
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On June 8, 2016, Father and Mother both appeared pro se. A
Tagalog interpreter again appeared to assist Father. Mother
reiterated that she did not want to proceed with a fact finder
because the expenses were more than she had anticipated and that
she believed the money should be used to enroll Son in a private
school. The family court determined that it was unable to rule
upon Mother’s motion for post-decree relief and ordered that the
case be set for trial on July 8, 2016. Specifically, the
following exchange took place:
THE COURT: Because you guys have changed basically what
you had agreed to do, and -- which is fine. I mean, I
understand your -- your situation. But I’m unable to have
the hearing today.
So what I’m going to do is you guys are going to have
to go to trial on July 8th, 2016, at 8:30 in the morning.
. . . .
[Y]ou guys have to . . . come back here for trial on July
8th at 8:30.
All witness and exhibit lists need to be filed and
exchanged with the parties by July 1st, 2016.
And then we’ll -- I’ll give you a half-day trial,
from 8:30 to 12 o’clock, to present whatever witnesses you
have and evidence you have to either support your request
to relocate or to challenge the request to relocate. Okay?
Do you guys understand that?
. . . .
[MOTHER]: Actually, I actually prepared the exhibits, but
then if you want to (indiscernible) for the trial, then --
THE COURT: Because I -- I want you guys to have more time
than you guys are going to have just in a -- a short
hearing today, ‘cause this is a very important request. So
I’m going to set it for trial and give you half a day, just
you guys, to present your case so that I can have more time
to go and consider everything. Okay?
Okay. Any questions, sir?
[FATHER]: No, Your Honor.
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THE COURT: And then [an] interpreter will be ordered for
that day.
On June 8, 2016, the family court also ordered the parties
to appear before a family court officer on June 20, 2016 for a
quick custody study, to exchange and submit all witness lists
and exhibits by July 1, 2016, and then set an “extended hearing”
for July 8, 2016 at 8:30 a.m.3 On June 14, 2016, however, the
family court set aside its June 8, 2016 order and instead
referred the parties to the family court’s Custody Investigation
Unit for a regular custody investigation.4 The parties were also
ordered to appear for “an extended hearing” on Mother’s motion
for post-decree relief and “for the Return on [CIU]
investigation” on September 30, 2016.
On September 22, 2016, Father submitted a detailed,
notarized letter addressed to Judge Kupau, who had been
presiding over Mother’s post-decree motion, expressing serious
concerns with what he perceived to be the antagonistic attitude
toward him by the CIU social worker who had come to conduct the
3
The family court referred to this as a “trial” during the hearing, but
the order used the term “extended hearing.”
4
This investigation differs from the quick custody study previously
ordered, which does not involve site visits and interviews with various other
persons that may be able to provide information pertinent to a custody report.
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home visit, and also expressing why he thought the children
should not be relocated to North Carolina. It appears the CIU
social worker completed the twenty-eight page, single-spaced CIU
Report on or about September 23, 2016. The record does not
reflect the mailing of the CIU Report to the parties.5
On September 30, 2016, the parties appeared before the
family court.6 At the outset, the family court indicated that
“this hearing, this trial” would have to be completed by noon.
The proceedings began at 8:34 a.m. and concluded at 11:44 a.m.,
with one fourteen minute recess. Both Mother and Father
proceeded pro se, and a Tagalog interpreter was present to
assist Father.
Before opening statements, the family court asked Mother
and Father to clarify the identities of their witnesses and
testimonies they expected from each. Mother first indicated she
was going to call M.C. and L.C. to testify regarding their past
5
In contrast, the minutes reflect that a court clerk mailed the June 13,
2016 order, which was not entered at the end of a court proceeding, to the
parties. The CIU Report itself is sealed due to its confidentiality pursuant
to HRS § 571-84(c) (Supp. 2001), which provides that “[n]o information
obtained or social records prepared in the discharge of official duty by an
employee of the court shall be disclosed directly or indirectly to anyone
other than the judge or others entitled under this chapter to receive the
information, unless and until otherwise ordered by the judge.”
6
The Honorable William J. Nagle presided over the trial and the motion
for reconsideration.
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encounters with Father, their relationship with the children,
their impressions of Mother’s husband, and why they believed it
was in the children’s best interests to move to North Carolina.
The family court indicated that Mother could only call either
M.C. or L.C. as a witness. Mother also stated she would also be
calling her mother as a witness to testify regarding the Son and
Father in the Philippines, Father’s behavior when picking up Son,
and the help she would provide when moving to North Carolina.
The family court then stated that what happened in the
Philippines was not relevant to the trial issue of whether
Mother should be granted sole legal7 and physical custody of the
children and the “other issue . . . [of] whether [Mother] should
be allowed to relocate with the children to North Carolina.”
Father next explained he had brought his sister, his father,
and a family friend to testify on his behalf and the natures of
their expected testimonies. Regarding the proposed testimony of
the sister and the father, the family court indicated that
Father would only be able to call one of them to testify about
the caretaking of the children because their testimony would be
cumulative.
7
Mother had not requested a change in Father’s joint legal custody.
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The family court also stated that “the fact that [Mother
and Father had] listed witnesses to testify in addition to
[themselves] is going to put a strain on our ability to get this
done this morning[,]” and indicated that if the parties were
going to call witnesses other than themselves, they needed to
get to the point. The family court additionally indicated it
was not interested in parties’ “past disputes and quarrels” as
it had reviewed the court file. The family court then advised
the parties that “if you’re going to call people, get to the
point. And if you’re going to cross-examine people, ask your
questions. Be sure you know what you’re asking, and don’t get
into arguments in front of the Court.”
The family court also acknowledged that both parties had
submitted numerous exhibits to be received into evidence and
addressed which ones were going to be admitted. The family
court then asked if either party wanted to make an opening
statement.
Father’s opening statement consisted of the following:
[FATHER]: Your Honor -- (Through interpreter) -- it’s this
-- this (indiscernible). It’s very hurting to me to --
seeing as my children were still young. It’s been seven
years that they’ve been out from me. So they remove her –
[Daughter] (indiscernible). It’s -- it really hurts me.
It’s your decision. It’s up to you, Your Honor, if you --
if you allow them to be removed away from me, although it
hurts me very much. I -- I wish that they could stay with
me, because I love them very much. They are my life. So
(indiscernible) they did to me, I am a U.S. citizen. I also
stay with my parents. It is up to you, Judge. It’s your
decision. Please don’t allow them to be removed from me.
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(In English) That’s all, Your Honor.
(Through interpreter) That’s all I can say.
Mother then presented a much more lengthy opening statement in
English. She stated she was not seeking to change Father’s
joint legal custody of the children.
Mother then called three witnesses to testify on her
behalf: (1) L.C., the friend with whom she had resided, for
whose mother she had served as caretaker; (2) the children’s
maternal grandmother; and (3) M.C., the retired HPD Lieutenant,
with whom Mother also resided. Although the family court had
indicated earlier that Mother could only call either L.C. or M.C.
as a witness, at the conclusion of the grandmother’s testimony,
the family court asked Mother if she wanted to call M.C., who
was then also allowed to testify. Mother also testified on her
own behalf.
Father was provided opportunities to cross-examine each of
Mother’s witnesses, including Mother herself; he attempted
cross-examination of L.C. and M.C. only. While Father was able
to ask L.C. and M.C. to clarify certain parts of their testimony,
Father had to be reminded several times that he was only
permitted to ask questions on cross-examination, and was not
allowed to argue with the witnesses. For example, the following
exchange took place on cross-examination of L.C.:
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BY [FATHER]:
Q. [L.C.], you just said that it would be
(indiscernible) I’m not good father in terms of educating
and intensive (indiscernible) for my kids. I believe that
I did my best, sending them in their doctors --
THE COURT: Excuse me. Do you have any questions for her?
Q. (BY [FATHER]) [L.C.], how did you said that -- you said
that I am not being a good father to my kids in terms of
their health or something or their school, in their school,
sending them in [] School?
A. Well, I understand from your son, [Son], who is . . .
eight years old, that you do his homework for him, and you
provide him his answers because you felt that he was too
lazy to do his homework, and he was frustrated about doing
his homework. I don’t think that’s a good thing for a
father to do because the son -- your son will never learn
anything in school.
Q. I’m -- I’m trying to encourage him to do his homework
or to do his classwork.
THE COURT: [Father], not time to argue with the witness.
If you have a question to ask her, you should ask her now.
[FATHER]: (Through interpreter) Only the question -- only
statements that (indiscernible) make?
(In English) Only the statement, Your Honor, or --
THE COURT: This is not the time for you to make
statements. If you have questions to ask [L.C.]--
[FATHER]: About what she said?
THE COURT: About her testimony, yeah.
[FATHER]: That’s all, Your Honor.
Similarly, on M.C.’s cross-examination, the following
exchange took place:
BY [FATHER]:
Q. Sir, [M.C.] Lieutenant, what did you said, N.C.,
North Carolina, is better than Hawaii, considering now
there’s a lot of crime happening there, considering Hawaii
is very peaceful, and there’s no history of anything
violence, except the last war, which is World War II, which
has been long, long time [sic]?
A. [Father], for your information, working -- working
the streets of Kalihi for 29 years and the surrounding
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district of Kaneohe, our town is not as peaceful as you
might imagine. I’ve been trained in riot control, and we
have prevented a few riots, including a few at a bar . . .
many times. So the actions that you’ve seen in Charlotte,
North Carolina, are typical of a . . . metropolitan area.
We’re no different.
The metropolitan [area] here . . . has a permanent
population of 956,000 people. Of that, the average . . .
people who are committing crimes is 3 percent. Well,
that’s over 30,000 who are causing trouble in our city. So
we don’t live in a real peaceful environment[.]
Q. And then you said that the kids not going have a hard
time going back and forth every week. Have you ever think
that it’s going to be hard for them not to see me, if
you’re thinking the -- their best interest, to
(indiscernible) me as their father, not see me every week
(indiscernible) right now?
A. Considering my observations of their reactions to you,
oh, I certainly think they’ll be much better off,
especially as a baby, when your daughter, [Daughter], used
to kick and scream when you’d take her away from her mother
or me or my wife during the twice weekly exchanges.
Q. For what I see, [M.C.], my daughter always excited to
see me, and my son.
THE COURT: Excuse me, [Father]. This is the time for
questions. Okay?
[FATHER]: That’s all, Your Honor.
Then, during Mother’s direct testimony, the following
exchange took place:
THE COURT: Now, are you asking the Court, as far as joint
legal custody is concerned, to give you any tie-breaking
authority if you move to North Carolina because you will be
there with the kids?
[MOTHER]: Yes, Your Honor. That’s what was recommended in
the custodial evaluator’s report. I would love to have the
tie-breaking, Your Honor.
THE COURT: Okay. I just wanted to clarify that.
After Mother finished presenting her evidence, the family
court informed the parties that it had asked the CIU social
worker to come up to court to be sworn as the court’s witness
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and to authenticate her CIU Report. The family court observed
that the CIU Report “does not appear to have been filed in
court,” and that the family court wanted to provide the parties
an opportunity to ask the social worker any questions they had
regarding the CIU Report. Upon being informed that the CIU
social worker was being called to testify, Father then orally
requested a continuance to consult an attorney:
[FATHER]: Can I say something, Your Honor? I would like
to practice my right to -- to see a -- a lawyer.
THE COURT: See a lawyer now?
[FATHER]: I would like to extend this hearing.
THE INTERPRETER: Asking for a continuance because he wants
to consult a lawyer.
Mother objected to Father’s request for continuance,
stating that she intended to enroll Son in school in North
Carolina and the hearing on her motion for post-decree relief
had already been continued several times. The family court then
asked Father why he had not retained an attorney up until this
point. Father responded:
Your Honor, I didn’t know is going -- this going to be the
setup, ‘cause normally when we go to . . . court, it’s
normally asking the judge. I didn’t know about . . .
cross-examination, something like that. I have no idea.
So I would like to practice my right to hire a lawyer, to
see a lawyer (indiscernible), and extend this hearing,
‘cause I . . . have no idea about this . . . procedure.
The family court denied Father’s motion for a continuance in the
following exchange:
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THE COURT: Okay. [Father], the problem I’m having is that
this motion was filed back . . . in February. You folks
have had numerous hearings before . . . Judge Kupau. Since
that time, you’ve been to court, you know, a fair amount.
I guess . . . I don’t understand why you’ve had in excess
of six months to hire an attorney, and now we’re halfway
through the trial, and you want to continue the matter to
hire an attorney.
[FATHER]: Like, again, like I said, Your Honor, I didn’t
know this -- that this the first time I been here in this
kind of setup of -- in the court. I normally go to a --
they get a judge and two of us.
THE COURT: Uh-huh.
[FATHER]: That’s -- that’s how it is. But cross-
examination, I have no idea. That’s why I cannot do it.
So I would like to say -- I would like to practice my right
to . . . see a lawyer so I can also (indiscernible) for me
to deliver my –- my . . .
THE COURT: Okay. [Father], the Court’s going to deny your
motion for a continuance. I think it’s too late. We’re
already in the trial. That’s something that if you
were . . . going to, you should have hired an attorney
early on. So I’m going to deny your motion. It’s too late.
The family court then called the CIU social worker to the
stand. The social worker briefly testified that she had
performed a custody evaluation for the present case, that she
had prepared the CIU Report, that the signature on a document
before her was her signature, that she had made certain
recommendations to the court as a result of the investigation,
and that her recommendations had not changed from the September
23, 2016 date of the Report.8
8
As indicated later, the family court considered the CIU Report, which
was not marked as an exhibit and was not received in evidence. The CIU
(continued. . .)
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Both parties were then given opportunities for cross-
examination. Mother indicated she had no questions. Father
again experienced difficulty and again requested a continuance
so that he could consult a lawyer, which the family court
denied:
BY [FATHER]:
Q. In her report, you never said that I do have a one-
bedroom house and all that . . . safety first, which is I
-- I mention it -- mention to you four times. If you
remember, when you come to my house, my main goal for
my . . . children is . . . their safety. But . . . you
never put anything about that, all that safety thing that I
show it to you?
A. I’m sorry. I don’t understand the question.
THE COURT: [Father], it would help if you’d just ask a
very simple question like, do you remember the time you
visited my house?
[FATHER]: Like again -- like I said, Your Honor, I would
like to see a lawyer because I would like to practice my
right to -- ‘cause I don’t know -- I don’t know how to do
this thing.
THE COURT: Well, it’s not hard, [Father]. If you’re
asking her about what she did or didn’t see on a visit to
your house, all you have to do is ask her, do you remember
-- Do you remember visiting [Father’s] house?
THE WITNESS: Yes.
THE COURT: What did the house look like?
THE WITNESS: It was a one-bedroom, one-bath, with a living
room into an open kitchen area apartment.
(continued. . .)
social worker never testified as to the contents of the Report or her
recommendations, except in response to the few questions asked by Father.
The rules of evidence should be followed.
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[FATHER]: In her report, she didn’t write down what inside
of the refrigerator, things like that, what . . . foods
that my children eat, and then what (indiscernible) my
parent’s house, and what the childrens do . . . there. So
to me --
THE COURT: Okay.
[FATHER]: –- this woman is incomplete.
THE COURT: All right.
[FATHER]: (Indiscernible.)
THE COURT: Do you agree that your report is incomplete in
any way?
THE WITNESS: No.
THE COURT: Okay.
[FATHER]: Your Honor, again, I would like to practice my
right to hire a lawyer, to . . .
THE COURT: [Father], again, we’re in the middle of the
trial. If you wanted to hire a lawyer, this was something
you should have done way before this.
Do you have any other questions for [the social worker]?
Because if you don’t, I’m going to release her.
[FATHER]: That’s all I want to ask (indiscernible).
After the CIU social worker left the stand, Father was
given an opportunity to present his evidence. Father elicited
testimony from three witnesses. Father also testified. For the
most part, Father testified in English, on his own; he relied on
the Tagalog interpreter to clarify that he believed his children
would experience anxiety if they relocated to Durham. As he
testified, Father went through his exhibits, explained their
contents, and explained how each exhibit supported that moving
to Durham was not in the children’s best interests.
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Mother and Father then gave their closing arguments.
Father’s closing argument was as follows:
[FATHER]: Thank you, Your Honor. It’s -- for me, it’s more
about the stability, that the kids will be there. Over
here in Hawaii, they are more stable. They already
establish stability here. School, family, medical.
Everything’s -- everything that already is stable. Moving
-- moving her in North Carolina is (indiscernible)
especially –-
THE COURT: It’s what?
[FATHER]: Anxiety. (Through interpreter) Anxiety. (In
English) Anxiety. (Through interpreter) Creates anxiety.
THE COURT: Anxiety for?
[FATHER]: For them, especially they’re too young. I’ve
been taking care of them -- my -- to them, except to my son,
who has just came here, since his (sic) birth. So if
they’re going to be remove, Your Honor, that relationship
is going to be different because they -- weekly we -- we
always see each other, so it’s going to be hard for both of
us, for the -- for the -- for me and for my both children,
that they enjoying, also, their family -- extended family
here, which is their cousins, their uncle, the auntie, the
grandparents. And, also, Your Honor, I've been a good
father to them. I would like to continue that. They are my
life. I will do more best for my kids. Last, Your Honor, I
never do anything bad or a crime. I’m a good citizen. I
deserve to have them. They are my life. They are my
happiness. And then, also, Your Honor, it’s not fair to me,
as the petitioner or plaintiff in the very beginning, that
I -- I going to -- I going to have only two months during
the summer and from the – for . . . [MOTHER], having school
year the whole year, which is ten months. Just change the -
- the -- change the -- the situation. Have her the
summertime, and I get the school year. Do you think it’s
going to be fair?
THE COURT: You should have asked that question of [MOTHER]
on cross-examination. Okay. Anything else, [FATHER]?
[FATHER]: That’s all, Your Honor.
THE COURT: Okay. Thank you very much.
At the conclusion of his closing argument, the following
further exchange took place:
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THE COURT: Okay. Thank you very much. The Court at this
time is going to take the matter under advisement. I’m
going to look over the exhibits that you folks have
provided, and I’ll render a decision within the next week.
Okay? I want to thank both [FATHER] and [MOTHER] . . . .
Thank you very much for your presentation and for your very
professional -- your very professional demeanor. I
appreciate it.
[FATHER]: I have a question, Your Honor. I’m sorry about
every -- if this -- like I said in the very beginning, this
is my first time to be in this kind of setup of -- in the
court, ‘cause normally the judge, me, and (indiscernible)
or the lawyers. I don’t know anything about cross-
examination. That’s why I just like, you know, what to do
(indiscernible), I ask him many times. My question is, Your
Honor, ‘cause I feel that I need a lawyer, but you -- you
deny it, just in case that you favor to her, I can always
appeal? I practice my rights to -- to fight for my kids?
THE COURT: [FATHER], you can retain the services of an
attorney anytime. But you can’t do it in the middle of
trial and expect the Court to continue, especially after
[MOTHER] has put on her evidence already. So if you want to
go out and retain an attorney to prosecute an appeal after
the Court’s decision, that’s entirely up to you.
[FATHER]: I just ask (indiscernible).
THE COURT: As the Court, I can’t give you legal advice.
You need to retain your own attorney to do that.
[FATHER]: Yeah, I’m sorry about that, ‘cause I didn’t know
this going to be the setup. That’s why I don't know that --
you know, how to do this. If I -- if I knew it going to be
like this, I probably hire a attorney, ‘cause just
considering that I have a interpreter, I don’t know what –
THE COURT: Okay.
Although the family court had stated it would rule within
the next week, the record does not reflect a ruling until almost
two months after the September 30, 2016 trial. On November 23,
2016, the family court filed an “Order Granting Defendant’s
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Motion For Post-Decree Relief Filed February 1, 2016” (“the
Order”).9 In the Order, the family court issued its factual
findings based upon the CIU Report and the evidence presented at
trial, and ruled with respect to legal and physical custody as
follows:
2. LEGAL CUSTODY. The Court has considered the
criteria set forth in [HRS] §571-46(b) . . . with respect
to each parent’s request that the Court award them sole
legal custody of the minor children. Particularly, the
Court focused on subsections (3) through (9), (12), (15)10
9
As argued by Father in his motion for reconsideration, despite stating
to the parties at the beginning of trial that it was not interested in the
parties’ past disputes and quarrels, apparently based on its review of the
record, the family court discussed the previous post-decree motions in some
detail, drawing negative inferences against Father, such as “Father’s written
response to Mother’s Motion [to allow L.C. and M.C. to pick up the children]
demonstrates an intense antipathy for, and hostility to, Mother because of
events which occurred during their marriage; and a stated willingness to
involve the minor children in disputes with Mother.” In addition, as argued
by Father in his motion for reconsideration, the family court might not have
had been fully apprised regarding the details regarding this motion. In
addition, however, the response negatively referred to by the family court
was filed on July 18, 2013, within nine months after the divorce decree, and
this matter took place more than three years later.
10
HRS § 571-46(b)(3) through (9), (12), and (15) provide:
(b) In determining what constitutes the best interest of
the child under this section, the court shall consider, but
not be limited to, the following:
. . .
(3) The overall quality of the parent-child
relationship;
(4) The history of caregiving or parenting by each
parent prior and subsequent to a marital or other
type of separation;
(5) Each parent’s cooperation in developing and
implementing a plan to meet the child’s ongoing
needs, interests, and schedule; provided that this
factor shall not be considered in any case where the
(continued. . .)
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and (16)11 as indicative of the best interests of the minor
children . . . . The Court finds that Mother has carried
her burden of proof, as set forth below.
As between the two parents, it is evident that Mother
has been the more consistent parent in providing quality to
her relationship with the children since the divorce. She
has been the more attentive to the physical, emotional,
safety and educational needs of the children. Mother has
consistently demonstrated that she can separate the
children’s needs from her own, and place the best interests
of the children over her own interests.
The Court also finds that Mother has demonstrated the
occurrence of a change in circumstances necessitating a
change in legal custody principally due to Father’s
inability or unwillingness to place the best interests of
the children above his own disagreements and hostility
towards Mother. [fn2 See § 571-46(b)(12), HRS.] Independent
of any relocation decision, it is obvious that joint legal
custody has not produced the desired benefits for the minor
children, because of Father’s behaviors. [fn3 The Divorce
Decree requires that the parties attempt mediation of their
disputes before filing motions in court. To date, there is
(continued. . .)
court has determined that family violence has been
committed by a parent;
(6) The physical health needs of the child;
(7) The emotional needs of the child;
(8) The safety needs of the child;
(9) The educational needs of the child;
. . .
(12) Each parent’s actions demonstrating that they
separate the child’s needs from the parent’s needs;
. . .
(15) The areas and levels of conflict present
within the family;
. . . .
11
HRS § 571-46(b)(16) requires consideration of “[a] parent’s prior
wilful misuse of the protection from abuse process under chapter 586 to
gain a tactical advantage in any proceeding involving the custody
determination of a minor” in the best interests analysis.
Despite the family court’s reliance on HRS § 571-46(b)(16), there
is no record of any HRS Chapter 586 proceedings involving Father and
Mother.
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no indication that the parties have attempted mediation.12]
Father has placed the minor children at the center of his
disputes with Mother; first, by calling HPD repeatedly at
the pick up and drop off locations to document his
frivolous allegations against Mother for custodial
interference; and second, by refusing to communicate with
Mother to resolve relatively insignificant issues relating
to the pickup and drop off schedule. Moreover, Father’s
trial testimony demonstrates that he has no intention of
cooperating and coparenting with Mother in the future; his
fixation with “fighting for [his] children” with Mother
instead of attempting to work with her for the children’s
benefit, demonstrates misplaced priorities. From the post-
Decree history of the parents, the Court has no factual
basis for inferring that Father’s hostility towards Mother
will lessen with time or distance. Mother has also carried
her burden of showing that she has attempted to work with
Father for the benefit of the children, albeit
unsuccessfully.
For these reasons, the Court finds that the best
interests of the minor children require a change in legal
custody from joint legal custody to sole legal custody in
favor of Mother. The Court further finds that the best
interests of the children require that Mother be tasked the
obligation to inform and confer with Father concerning the
major issues of the minor children’s lives. Father shall
also have equal access to the children’s medical and school
records, as well as their extracurricular activities. If
the parties cannot arrive at a consensus decision on the
major issues of the children’s lives, then Mother shall
make the decision.[13]
3. PHYSICAL CUSTODY/RELOCATION. The Court finds that
Mother has carried her burden of demonstrating that the
best interests of the children support her request to
relocate her residence with the children from Honolulu to
12
Father’s alleged failure to refer matters to mediation was not raised
by Mother and was never discussed during the trial, and as also argued by
Father in his motion for reconsideration, may have been factually incorrect.
13
Mother’s motion was based on her relocation request. In addition, as
noted, Mother repeatedly stated she was not requesting a change in legal
custody. Upon questioning by the family court, Mother indicated she wanted
“tie-breaking” authority with respect to legal custody. Yet, this portion of
the family court’s ruling, which changes legal custody from joint to solely
to Mother, is not conditioned on any relocation, and orders a change not
requested by Mother.
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Durham, North Carolina, forthwith.[14] The Court also finds
that Mother has carried her burden of demonstrating that
the best interests of the children require an award of
physical custody of the minor children to Mother.
Mother has demonstrated that the children’s
opportunities for education, medical care, employment and
cultural growth in Durham, NC are better than Honolulu.
Because the maternal grandparents will accompany Mother to
Durham, Mother has shown that she has support for
supervision, direction and care for the children, in
addition to her husband. Mother has also shown that her
opportunities for employment in the Durham area are more
numerous and advantageous to her, than those in Honolulu.
The Court is not persuaded that the children should
remain in Honolulu with Father. First, as noted above,
Father’s evident and continuing hostility to Mother, even
after the divorce, and his willingness to place the
children at the center of their disputes, cannot be in the
children’s best interests. Moreover, based on his behavior
to date, the Court finds that Father is unable to place the
children’s best interests ahead of his own. Second, neither
Father nor any of his witnesses at trial articulated any
compelling reasons for the children to remain in Honolulu.
Finally, Mother’s plan for relocation adequately provides
time for Father to visit with and enjoy time with the
children.
In order to prevail on her request to change physical
custody and to relocate with the minor children to Durham,
North Carolina, Mother must demonstrate that: (1) “there
occurred such a change in circumstances that the
replacement of custody would be in for the best interests
of the children”, Dascoscos v. Dascoscos, 38 Haw. Terr.265,
266 (1948); and (2) that relocation of the minor children
to Durham, North Carolina would be in the best interests of
the children as enumerated in §571-46(b), HRS. Mother must
demonstrate these elements to a preponderance of evidence.
Mother’s proposed relocation of the minor children to
Durham, North Carolina is a change in circumstances, the
occurrence of which would dictate a change in physical
custody, in the best interests of the children. Dascoscos,
supra; quoted in Waldecker, supra at p. 22. The Divorce
Decree clearly contemplated that the parties would share
equal time with the minor children while they resided on
the island of Oahu. While the Decree does refer to the
possibility of relocation by one or both parties in §3, the
provision requires that a relocating party give 60 days
14
Although the Order allows relocation “forthwith,” the record does not
indicate any ruling on the September 30, 2016 trial until this November 23,
2016 order.
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notice of the relocation to the other party, who may then
consent or object. Nothing in the Decree governs time-
sharing between the parties in the event that one relocates
out of the State of Hawaii.
Based on the evidence at trial and the report of CIU,
the Court finds that Mother has been the primary caregiver,
and more consistently supportive parent to the children.
The Court also finds that Mother has, and is presently able
to place the interests of the children ahead of her own,
even while working multiple jobs to provide for them
financially. No evidence was presented at trial that any
safety issues will arise if an award of physical custody is
made to Mother for the relocation. On the other hand,
Father has failed to show that he has advanced the
children’s educational opportunities [fn4 [L.C.] testified
that Father, rather than supervising [Son’s] homework,
actually did the homework for [Son], which hindered [Son’s]
efforts at school.] nor has he demonstrated at trial that
he would be an adequate physical custodian. Based upon
these findings, the Court awards sole physical custody of
the minor children to Mother, subject to Father’s rights of
visitation, as set forth below.
Additionally, in a footnote, the family court indicated
that Father requested a continuance at trial, but that the
request was denied:
Father requested a continuance of the trial to retain legal
counsel after Mother had concluded her presentation of
evidence in her case in chief. Despite the passage of 7
months and numerous court hearings since the filing of
Mother’s Motion, Father had failed to seek or retain legal
counsel. Father presented no excuse for his failure to
retain legal counsel in a timely fashion, and the Court
denied Father’s request for a continuance literally in the
middle of trial as untimely.
On December 2, 2016, Father filed a motion for
reconsideration. In summary, Father argued that his motion
should be granted because: (1) several of the family court’s
factual findings were erroneous or based upon incomplete
information; (2) the evidence, in his view, demonstrated that
relocation to Durham was not in the children’s best interest;
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and (3) the family court should have granted his motion for a
continuance so he could have sought advice from a lawyer.15
On January 4, 2017, the family court issued a written order
denying Father’s motion for reconsideration. The family court
ruled that Father’s motion reiterated arguments he had raised at
trial and did not present any new evidence and/or arguments that
could not have been presented at trial.
C. ICA proceedings
On appeal, Father, now represented by counsel, raised two
points of error. Father argued that the family court abused its
discretion in denying his motion for a continuance at trial and
in considering the CIU Report in support of its decision
granting mother’s motion for post-decree relief.
Regarding the first point of error, in summary, Father
argued that the family court abused its discretion in denying
his motion for a continuance because: (1) a continuance would
not have resulted in any inconvenience to the family court, the
parties, or the witnesses; (2) Father had legitimate reasons to
seek a continuance, given that “[h]e is not a native English
speaker and had great difficulty communicating as he attempted
15
See also notes 9 & 12, supra.
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cross-examination of the witnesses”; and (3) Father was not at
fault for waiting to consult a lawyer for several months, as
Father did not know he would need the assistance of counsel
until shortly before trial because he was not given a copy of
the CIU report until, at a maximum, a week before trial.
With respect to his second point of error, Father advanced
several arguments in support of his position that the family
court abused its discretion in considering the CIU Report.
First, Father argued that the CIU report was deficient. Father
highlighted that the CIU Report only “compared alternatives of
MOTHER or FATHER having sole physical custody, without taking
into account that these alternatives mean that MOTHER was
prepared to abandon the children to FATHER if the motion were
denied,” and “failed to consider the advantages to the children
of remaining in a stable and familiar environment in Hawai[ʻ]i
within the jurisdiction of the Hawai[ʻ]i Family Court.” Father
also argued that the CIU Report was incomplete because it did
not sufficiently investigate Stepfather’s background and the
details of the intended neighborhood of relocation. Father
further argued that the family court abused its discretion in
considering the CIU Report because the social worker was not
qualified to serve as a custody evaluator under HRS § 571-46.4
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(Supp. 2013), and Father did not consent to the social worker’s
appointment as a custody evaluator.
Mother, acting pro se, responded to each of Father’s points
of error. Mother first argued that the family court did not
abuse its discretion in denying Father’s mid-trial motion for a
continuance. Mother argued that at the June 8, 2016 hearing,
the family court had informed both of the parties that the next
proceeding was going to be a trial. Additionally, Mother argued
that at the September 30, 2016 hearing, prior to the parties’
opening statements, the family court explained how the trial was
going to proceed and provided the parties with an opportunity to
ask questions. Mother contended that the family court correctly
denied Father’s motion for a continuance, as he had ample
opportunity to seek counsel and to resolve any questions
regarding the nature of trial proceedings, but still chose to
represent himself.
With respect to the second point of error, Mother contended
that the family court did not abuse its discretion in
considering the CIU Report. Mother argued that HRS § 571-
46(a)(4) does not require a parent to consent to an
investigation or report, and asserted that the CIU social worker
was qualified to serve as a custody evaluator under HRS § 571-
46.4(a) (Supp. 2013). Mother also countered that the social
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worker sufficiently investigated Stepfather by speaking with him
over the phone twice and by speaking with his landlord/housemate
over the phone. Mother concluded that the CIU Report was not
only complete, but was thorough, accurate, and drafted by a
qualified individual.
On December 26, 2017, the ICA filed a summary disposition
order, in which a majority of the ICA panel vacated the family
court’s orders granting Mother’s motion for post-decree relief
and denying Father’s motion for reconsideration. DJ v. CJ,
CAAP-XX-XXXXXXX, at 1-5 (App. Dec. 26, 2017) (SDO). The ICA
majority concluded that “the family court abused its discretion
in denying Father’s request for a continuance to seek the
assistance of counsel.” DJ, SDO at 5. The ICA majority further
determined that it need not address Father’s second point of
error. DJ, SDO at 2 n.1.
Judge Reifurth dissented. DJ, SDO at 6-12 (Reifurth, J.,
dissenting). In his view, the family court did not abuse its
discretion in denying Father’s request for a continuance. DJ,
SDO at 6 (Reifurth, J., dissenting). He reasoned that because
Father had been provided with an interpreter, Mother’s motion
had been filed more than seven months before the trial, and
Father was familiar with his right to counsel and the process,
yet chose not to hire an attorney, Father had not exercised due
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diligence. Accordingly, Judge Reifurth would have ruled that
father’s substantive parental rights had not been infringed upon
and the family court did not abuse its discretion in denying
“Father’s mid-hearing request for a further continuance.” DJ,
SDO at 10-11 (Reifurth, J., dissenting).
Judge Reifurth also addressed Father’s second point of
error. DJ, SDO at 11-12 (Reifurth, J., dissenting). He opined
that Father did not demonstrate that: (1) the CIU Report was
incomplete in any material sense; (2) the family court’s ability
to consider the CIU Report was conditioned upon his consent
thereto; or (3) the family court relied upon the CIU report in
granting Mother’s motion for post-decree relief. DJ, SDO at 11
(Reifurth, J., dissenting). Based on the family court’s “broad
discretion in examining reports concerning a child’s custody,”
Judge Reifurth opined that the family court did not abuse its
discretion in considering the CIU Report. DJ, SDO at 11-12
(Reifurth, J., dissenting).
On February 8, 2018, the ICA entered its Amended Judgment
on Appeal.
D. Application for writ of certiorari
Mother filed a timely application for a writ of certiorari,
raising two questions: (1) whether the family court abused its
discretion by denying Father’s request for a continuance to
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obtain legal counsel; and (2) whether the family court
manifestly abused its discretion by relying upon a CIU Report
that was alleged to be incomplete and performed without Father’s
consent.
For the reasons below, the ICA majority did not err in
ruling that the family court abused its discretion by denying
Father’s request for continuance to obtain legal counsel. Based
on its ruling on the first question, the ICA majority did not
address the second question. As the second question on
certiorari would still be at issue on remand, however, we
address issues raised therein to provide guidance. Ultimately,
we affirm the ICA’s Amended Judgment on Appeal, as modified by
this opinion.
III. Standards of Review
A. Whether an abuse of discretion occurred
A family court’s decision to grant or deny a motion for a
continuance is reviewed for an abuse of discretion. Onaka v.
Onaka, 112 Hawaiʻi 374, 378, 146 P.3d 89, 93 (2006). “It is well
established that ‘[a]n abuse of discretion occurs if the trial
court has clearly exceeded the bounds of reason or disregarded
rules or principles of law or practice to the substantial
detriment of a party-litigant.’” Id. (brackets in original,
citation omitted).
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Whether an abuse of discretion occurred is a question of
law. In re B.G.D., 351 S.W.3d 131, 145 (Tex. Civ. App. 2011).
Thus, an Intermediate Court of Appeals ruling that an abuse of
discretion occurred is a question of law reviewed under the
right/wrong standard of review.
B. Consideration of evidence
When application of a particular evidentiary rule can yield
only one correct result, the proper standard for appellate
review is the right/wrong standard. However, the
traditional abuse of discretion standard should be applied
in the case of those rules of evidence that require a
“judgment call” on the part of the trial court.
State v. St. Clair, 101 Hawaiʻi 280, 286, 67 P.3d 779, 785 (2003)
(citations omitted).
IV. Discussion
A. The ICA did not err in ruling that the family court abused
its discretion in denying Father’s motion for a continuance.
At issue is whether the ICA majority erred in ruling that
the family court abused its discretion in denying Father’s
request for a continuance, in other words, whether the ICA erred
in ruling that the family court clearly exceeded the bounds of
reason or disregarded rules or principles of law or practice to
the substantial detriment of a party-litigant. As we noted in
AC v. AC, 134 Hawaiʻi 221, 233, 339 P.3d 719, 731 (2014):
Important constitutional interests provide . . . reason for
providing parents a full and fair opportunity to present
their case in custody decisions. Indeed, a parent’s
right to the “care, custody and control” of his or her
child is a fundamental liberty interest protected by the
United States Constitution. Troxel v. Granville, 530 U.S.
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57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (“[T]he
interest of parents in the care, custody, and control of
their children is perhaps the oldest of the fundamental
liberty interests recognized by this Court.”). This court
has also recognized that 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 1, section 5
of the Hawaiʻi Constitution.[] Parental rights guaranteed
under the Hawaiʻi Constitution would mean little if parents
were deprived of the custody of their children without a
fair hearing.” In re Doe, 99 Hawaiʻi 522, 533, 57 P.3d 447,
458 (2002).
As reflected in the passage above, it is axiomatic that a
parent’s right to the care, custody, and control of the parent’s
child is a fundamental liberty interest protected by the United
States and Hawaiʻi constitutions and entitled to due process
protection. In a child custody context, we have specifically
stated that the State may not deprive a parent of the
fundamental liberty interest in the care, custody, and control
of a child
without providing a fair procedure for the
deprivation. Furthermore, the Supreme Court has said that
parental rights cannot be denied without an opportunity for
them to be heard at a meaningful time and in
a meaningful manner.
In Re Doe, 108 Hawaiʻi 144, 157, 118 P.3d 54, 67 (2005) (emphasis
in original). In light of the important constitutional interest
involved, the ICA majority did not err in ruling that the family
court abused its discretion in denying Father’s oral request for
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a continuance to seek counsel under the circumstances of this
case.16
This case involved Mother’s motion to relocate to North
Carolina with the children and their soon to be step-father, a
potentially significant deprivation of Father’s fundamental
liberty interest in the care, custody, and control of his
children. The reality is that if the request for relocation was
granted, even with an order allowing visitation during some
school vacations, Father’s future contact with his children
would be significantly curtailed, especially due to the high
cost of travel to and from Hawaiʻi. Based on the possibility of
such a significant curtailment of his fundamental liberty
interest, Father was entitled not just to his “day in court,”
16
The dissent opines that because the family courts are uniquely
positioned as triers of fact throughout complicated and emotional custody
cases, we afford them “great deference” in making custody decisions and in
determining what is in the best interests of the child. The applicable
standard of review is still “abuse of discretion.” But here, we are not even
reviewing the merits of the actual custody or “best interests” decision, but
rather, the family court’s denial of Father’s request for a continuance to
seek counsel.
We also note that in In re Jane Doe, Born on May 22, 1976, 84 Hawaiʻi 41,
46, 928 P.2d 883, 888 (1996) which the dissent cites and which states that
family courts have wide discretion in making decisions that will not be set
aside without a manifest abuse of discretion, we actually held that the
family court abused its discretion in denying a motion for new trial, which
resulted in the exclusion of testimony inferentially bearing upon the best
interests of a child.
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but to be heard in a “meaningful manner.” See AC, 134 Hawaiʻi at
232-34, 339 P.3d at 731-32 (finding an abuse of discretion in
the family court’s setting of a rigid time period for custody
trial based on the important constitutional interest involved).
As the ICA majority noted and as the transcript passages in
Section II(B) depict, “[t]he record indicates that Father was
unfamiliar with the trial process, did not understand that trial
would impose different requirements than prior hearings that he
attended, and did not know how to conduct cross-examination.
Father was also burdened with language difficulties as English
was not his first language[.]” DJ, SDO at 2. As the ICA
majority also emphasized, Father did not seek the continuance
for a general delay, and Father’s substantive parental rights
were at stake at trial. DJ, SDO at 5. In addition, the
continuances before September 30, 2016 were not due to dilatory
tactics by Father.
In regard to Father not understanding that the September 30,
2016 trial would impose different requirements than prior court
hearings, although Father had appeared at various “hearings,”
and although the family court referred to the initial setting on
July 8, 2016 as a “trial,” the written orders referred to the
trial as an “extended hearing.” It also appears that Father
received some information regarding trial requirements because
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he appeared with witnesses and exhibits.17 However, even if
Father had received some basic information regarding “extended
hearing” or “trial” requirements, as noted by the ICA majority
and as reflected in Section II(B), he clearly was unfamiliar
with cross-examination of witnesses at a trial, and had
difficulty understanding and expressing himself in English in a
case involving the fundamental and important constitutional
interest of the care, custody, and control of his children.
Significantly, it was when the family court stated it would
be calling the CIU social worker as its own witness that Father
requested a continuance to seek and retain counsel. The family
court denied Father’s request for a continuance on the grounds
that Mother’s motion had initially been filed in February (about
seven months earlier), there had been numerous appearances
before Judge Kupau, and that, therefore, the request was “too
late.” As reflected in Section II(B), however, Father explained
that only he, Mother, and the judge had been present at past
hearings, and that he was unfamiliar with the trial process,
17
If the family court provides written guidelines, pretrial orders, or
otherwise provides other information to pro se litigants regarding trial
requirements, the record would be enhanced by including this information.
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including cross-examination. In addition, as pointed out by the
ICA, and as reflected in Section II(B) above:
[The record] further indicates that Father had not
officially been served with the CIU report, which the
family court introduced at the trial and on which the
family court relied, and it is unclear when Father actually
received the report.
DJ, SDO at 2.
As also noted by the ICA majority, the record does not
reflect that Father had been served with the September 23, 2016
CIU Report on or about that date. Although it appears the
parties were in possession of the CIU Report during the trial,18
it is unclear whether this occurred on the day of or before the
September 30, 2016 trial date. It was important to provide the
parties with sufficient time to review findings from a custody
study, as Judge Kupau had earlier noted at the March 30, 2016
hearing, to allow them to prepare for trial accordingly.
Although there had been previous appearances before Judge
Kupau, those appearances had occurred before preparation of the
CIU Report, which contained major recommendations adverse to
18
When Father attempted to cross-examine the CIU social worker, he tried
to point out that her report and investigation were incomplete because she
did not describe what types of food were in his refrigerator and what the
children were doing while they were at their paternal grandparent’s house
during the home-visit, indicating that Father had read the CIU report by that
time.
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Father. In fact, it was not until September 14, 2016, nine days
before the report, that the CIU social worker conducted a home
visit and observation of Father with the children at Father’s
home. Father’s perception of the social worker’s attitude
toward him prompted his detailed letter to Judge Kupau on
September 21, 2016. The CIU report was dated September 23, 2016
and it is unclear whether Father received it before the
September 30, 2016 date of trial. Thus, even if Father had
sought counsel immediately after receiving the report with
findings adverse to him, he realistically did not have adequate
time to retain and receive appropriate assistance from counsel
before the September 30, 2016 trial date.
In other words, Father did not have seven months to obtain
counsel, as implied by the family court, after receiving the
adverse CIU Report.19 Father requested a continuance to seek
counsel when the family court informed the parties that it would
be calling the CIU social worker as its own witness. Under the
circumstances, the family court’s ruling that “Father presented
19
For this reason, the California Court of Appeal cited by the dissent,
A.G. v. C.S., 246 Cal. App. 4th 1269 (Cal. Ct. App. 2016), is clearly
distinguishable on its facts, as the mother in that case apparently had
several months to seek counsel without any intervening event such as the CIU
Report here.
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no excuse for his failure to retain legal counsel in a timely
fashion” is therefore erroneous. In fact, Father’s September 21,
2016 letter to the Judge Kupau should have alerted the family
court that Father might need to seek counsel or at least need
more time to gather evidence to respond to a twenty-eight page,
single-spaced report that summarized the testimonies of numerous
witnesses and implicated important constitutional interests.
The family court could have exercised its discretion to ask
Father on September 30th whether he needed more time to seek
counsel or prepare evidence to respond to the Report instead of
proceeding with trial.
Also, Father’s right to be heard in a “meaningful manner”
included his right to cross-examine the CIU social worker.
Cross-examination is the “greatest legal engine ever invented
for the discovery of truth.” California v. Green, 399 U.S. 149,
158 (1970) (citations omitted). The importance of cross-
examination is not limited to criminal cases. As the United
States Supreme Court stated in the context of a complex
antitrust case,
It is only when the witnesses are present and subject to
cross-examination that their credibility and the weight to
be given their testimony can be appraised. Trial by
affidavit is no substitute for trial by jury which so long
has been the hallmark of ‘even handed justice.’
Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473
(1962). We have also recognized the importance of allowing
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cross-examination in the context of a civil proceeding affecting
substantial rights. See In re Waiola O Molokai, Inc., 103
Hawaiʻi 401, 443, 83 P.3d 664, 706 (2004) (finding error in
refusal to permit cross-examination regarding limu population
along shoreline with respect to protection of native Hawaiian
traditional and customary gathering rights).
The importance of the right of cross-examination with
respect to the CIU Report is explicitly recognized by the
Legislature in HRS § 571-46(a)(4), which provides in relevant
part that
[w]henever good cause appears therefor, the court may
require an investigation and report concerning the care,
welfare, and custody of any minor child of the parties.
When so directed by the court, investigators or
professional personnel attached to or assisting the court,
hereinafter referred to as child custody evaluators, shall
make investigations and reports that shall be made
available to all interested parties and counsel before
hearing, and the reports may be received in evidence if no
objection is made and, if objection is made, may be
received in evidence; provided the person or persons
responsible for the report are available for cross-
examination as to any matter that has been investigated[.]
HRS § 571-46(a)(4) (emphasis added). Yet, Father clearly did
not understand how to exercise this right to cross-examination.
The concurrence and dissent (“dissent”) states that Father
did not identify what information he was prevented from
eliciting on cross-examination. We have recognized, however,
that “the harm suffered by parents proceeding without counsel
may not be readily apparent from the record, especially because
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without the aid of counsel, it is unlikely that a case is
‘adequately presented.’” In re T.M., 131 Hawaiʻi 419, 436, 319
P.3d 338, 355 (2014) (citing Lassiter v. Dep’t of Soc. Servs. Of
Durham Cnty., N.C., 452 U.S. 18, 51 (1981) (Blackmun, J.,
dissenting)).20 We have also recognized that “[c]ounsel often
cannot know in advance what pertinent facts may be elicited on
20
The dissent contends that Father successfully gave opening and closing
statements, presented his evidence, elicited testimony from his witnesses,
and cross-examined Mother’s witnesses, that he competently presented his case,
and the family court’s ruling merely avoided further unnecessary delay. Not
only do we disagree with this contention, as indicated by this quoted passage
in In re T.M., when there is a deprivation of counsel, it is unclear what
harm may have been suffered by a parent.
In addition, due process requires that “justice []not only be done but
[] manifestly be seen to be done.” In re Estate of Damon, 119 Hawaiʻi 500,
509, 199 P.3d 89, 98 (2008). The family court’s reliance on previous post-
decree motions to draw adverse inferences against Father appears unfair when
the family court informed the parties at the commencement of trial that the
past arguments were not relevant. Also, the family court’s reliance on
Father’s alleged failure to refer matters to mediation appears unfair when
the issue was never raised or discussed, and when the family court may not
have had the entire background. Also, it does not appear just for the family
court to have ended Father’s legal custody when Mother repeatedly made it
clear that she was not making such a request and the family court’s
questioning only suggested it was considering “tie-breaker” authority with
respect to legal custody. Counsel would have been able assist Father on
these issues.
Moreover, in addition to the problems with cross-examination, Father
was also told by the family court during his “closing argument” that he
should have asked mother during cross-examination whether it would be fair
for Father to only have the children during summer vacation, further
indicating that Father did not understand the process. The family court also
incorrectly suggested to Father that he could retain counsel after the trial
only for purposes of prosecuting an appeal, rather than for post-trial or
other motions. Counsel most probably could have been of assistance in
Father’s motion for reconsideration.
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cross-examination.” State v. Maluia, 107 Hawaiʻi 20, 32, 108
P.3d 974, 986 (2005) (quoting Alford v. United States, 283 U.S.
687, 692 (1931)). In any event, as contended by Father’s
appellate counsel, counsel could have not only argued applicable
law, but could also have presented additional evidence,
including conducting a much more rigorous cross-examination of
the CIU social worker, to address various issues in the
relocation decision. For all of these reasons, we respectfully
but strongly disagree with the dissent.
The family court denied Father’s request for a continuance
based solely on the grounds it had been made during trial and
was “too late.” Due process concerns must prevail over court
scheduling concerns. Prejudice to Mother was not raised or
cited as a reason for denying a continuance.21 Based on Father’s
constitutional interest in the care, custody, and control of his
children, and for all of the reasons stated, the ICA majority did
not err by holding that the family court abused its discretion
21
It appears Mother wished to move quickly to join Husband and start Son
in a North Carolina school, but that by the time the family court ruled on
November 23, 2016, it made more sense for Son to start at a new school after
the winter break. In any event, under the circumstances, Father should have
been given a reasonable continuance to seek counsel.
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in not granting Father’s request for a continuance to seek the
assistance of counsel.22
B. The family court did not abuse its discretion in
considering the CIU Report.
Because issues regarding the CIU Report may arise on remand,
we address Mother’s second question on certiorari.
Father argued that the family court erred in considering
the CIU Report because he did not consent to a custody
evaluation being performed by the family court’s CIU and because
the CIU social worker was not qualified to serve as a custody
evaluator under HRS § 571-46.4. This is an evidentiary question
of law reviewed under the right/wrong standard of review.
With respect to Father’s alleged lack of consent to a
custody evaluation by the family court’s CIU, HRS § 571-46(a)(4)
provides in relevant part as follows:23
Whenever good cause appears therefor, the court may require
an investigation and report concerning the care, welfare,
and custody of any minor child of the parties. When so
directed by the court, investigators or professional
personnel attached to or assisting the court, hereinafter
22
The family court should have procedures in place that allow all judges
to set further trial dates when necessary to ensure protection of important
constitutional interests, such as the care, custody, and control of children.
Father should have been granted a reasonable continuance to seek the
assistance of counsel, whether or not he ultimately was successful in doing
so.
23
There have been no changes to HRS § 571-46 since 2013.
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referred to as child custody evaluators, shall make
investigations and reports that shall be made available to
all interested parties and counsel before hearing, and the
reports may be received in evidence if no objection is made
and, if objection is made, may be received in evidence;
provided the person or persons responsible for the report
are available for cross-examination as to any matter that
has been investigated[.]
As can be seen, HRS § 571-46(a)(4) does not require consent
to a custody evaluation investigation and report before one can
be ordered and considered by the family court. Father does not
cite to any other authority supporting his contention that
consent was a prerequisite to the family court’s ability to
consider the CIU Report. Therefore, Father’s consent was not
required.
Father also asserts that the CIU social worker was not
qualified to conduct a child custody evaluation due to HRS §
571-46.4, which, in general, sets out licensing requirements for
court-appointed custody evaluators and provides that the
judiciary shall maintain a publicly accessible registry of child
custody evaluators qualified pursuant to that section.24 This is
also a question of law reviewed under the right/wrong standard.
24
HRS § 571-46.4 provides;
Child custody evaluators; qualification; registry;
complaints.
(continued. . .)
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(continued. . .)
(a) A person may be appointed as a child custody evaluator
for purposes of section 571-46 if the person is actively
licensed as a:
(1) Physician under chapter 453 and is a board
certified psychiatrist or has completed a residency
in psychiatry;
(2) Psychologist under chapter 465;
(3) Marriage and family therapist under chapter 451J;
or
(4) Clinical social worker under section 467E-7(3).
(b) A person may be appointed as a child custody evaluator
in the absence of a license under subsection (a) if:
(1) The individual has obtained education and
training that meet nationally recognized competencies and
standards of practice in child custody evaluation; provided
that there are no child custody evaluators enumerated under
subsection (a) who are willing and available, within a
reasonable period of time, to perform child custody
evaluations; or
(2) The parties stipulate to a person who does not
qualify as a child custody evaluator under subsection (a)
and the court approves that person as a fact-finding
investigator to the court.
(c) The judiciary shall maintain on its website a publicly
accessible registry of child custody evaluators who are
qualified pursuant to this section. Professionals who are
willing and available to perform child custody evaluations
shall be responsible for providing the judiciary with
relevant information, including contact information,
evidence of qualifications, and fees.
(d) The judiciary shall establish a referral process to
allow parties to file a complaint with the judiciary
regarding a court-appointed child custody evaluator. Upon
notification by a party of the party’s intent to file a
complaint against a child custody evaluator appointed under
subsection (a), the judiciary may refer the complainant to
the appropriate licensing authority. The judiciary shall
submit to the legislature an annual report regarding the
number of complaints against court-appointed child custody
evaluators that are processed through the referral process.
(e) A complaint against a court-appointed child custody
evaluator not qualified under subsection (a) may be
resolved through civil litigation.
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HRS § 467E-6(2) (2013), however, exempts CIU social workers from
the licensure requirements of HRS Chapter 467E.25 Father’s
argument therefore lacks merit.
Mother also contests Father’s argument that the family
court abused its discretion in considering the CIU Report
because the record is unclear as to whether Father had been
officially served with a copy, and whether Father had actually
received the report before trial. HRS § 571-46(a)(4) requires
that “investigations and reports . . . be made available to all
interested parties and counsel before [the] hearing[.]” As
Father’s counsel will have had ample time to review the CIU
Report on remand, we need not address this issue. We agree,
25
HRS § 467E-6 provides in relevant part that “[l]icensure shall not be
required of . . . (2) Any person employed by a federal, state, or county
government agency in a social worker position, but only at those times when
that person is carrying out the duties and responsibilities as a social
worker in governmental employment[.]”
Article VI, section 7 of the Constitution of the State of Hawaiʻi
provides this court with the power to promulgate court rules relating to
practice and procedure, which have the force and effect of law, including the
Hawaiʻi Rules of Evidence. Admissibility of a CIU social worker’s opinion
regarding custody would be subject to the rules of evidence, including the
rules regarding qualification as an expert.
In addition, the first sentence of HRS § 571-46.4 provides that a
person may be appointed as a child custody evaluator “for purposes of section
571-46,” and subsection (4) of HRS 571-46 in turn provides that “[w]here
there is no child custody evaluator available that meets the requirements and
standards . . . the court may appoint a person otherwise willing and
available in accordance with section 571-46.4[,]” which also provides
exceptions to the licensure requirement. See HRS § 571-46.4 quoted in note
25, supra. Such circumstances exist here. See Section II(B), supra.
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however, that parties should be given adequate time to review
and respond to a twenty-eight page, single-spaced report that
summarizes the testimonies of numerous witnesses and implicates
important constitutional interests.
Finally, Mother raises as an issue on certiorari and
requests that this court address Father’s contention that the
family court abused its discretion in considering the CIU Report.
Father had argued that the CIU Report was flawed and that its
recommendation was suspect because it did not explicitly address
all factors set forth in HRS § 571-46(b), and that it could have
included additional information that would have helped the
family court ascertain whether relocation was in the children’s
best interests. Father’s arguments in this regard go to the
weight to be given the report, not to its admissibility. See
City & Cty. of Honolulu v. Bonded Inv. Co., 54 Haw. 385, 390-91,
507 P.2d 1084, 1089 (1973) (“The fact that an expert witness
omits consideration of one element of many in arriving at [an]
opinion . . . goes to the weight of [the expert’s] testimony
rather than to the admissibility of [the expert’s] opinion.”).
The CIU Report addresses nearly all of the factors that the
family court is required to consider in determining the best
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interests of the children pursuant to HRS § 571-46(b).26 Thus,
Father’s argument that the CIU report is flawed because it fails
26
HRS § 571-46(b) provides:
(b) In determining what constitutes the best interest of
the child under this section, the court shall consider, but
not be limited to, the following:
(1) Any history of sexual or physical abuse of a
child by a parent;
(2) Any history of neglect or emotional abuse of
a child by a parent;
(3) The overall quality of the parent-child
relationship;
(4) The history of caregiving or parenting by each
parent prior and subsequent to a marital or other
type of separation;
(5) Each parent’s cooperation in developing and
implementing a plan to meet the child’s ongoing
needs, interests, and schedule; provided that this
factor shall not be considered in any case where the
court has determined that family violence has been
committed by a parent;
(6) The physical health needs of the child;
(7) The emotional needs of the child;
(8) The safety needs of the child;
(9) The educational needs of the child;
(10) The child’s need for relationships with
siblings;
(11) Each parent’s actions demonstrating that they
allow the child to maintain family connections
through family events and activities; provided that
this factor shall not be considered in any case where
the court has determined that family violence has
been committed by a parent;
(12) Each parent’s actions demonstrating that they
separate the child’s needs from the parent’s needs;
(13) Any evidence of past or current drug or
alcohol abuse by a parent;
(14) The mental health of each parent;
(15) The areas and levels of conflict present
within the family; and
(16) A parent’s prior wilful misuse of the protection
from abuse process under chapter 586 to gain a
tactical advantage in any proceeding involving the
custody determination of a minor. Such wilful misuse
(continued. . .)
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to address all requirements governing a family court’s custody
decision lacks merit.
C. Based on the effect an out-of-state relocation has on
parental and children’s rights, a family court should
consider available resources in reviewing a relocation
request
This case highlights one of the difficult decisions
addressed by family court judges in this state—whether to allow
one parent to relocate out-of-state with a child. Such
decisions implicate the rights of parents as well as the rights
of children.
With respect to parental interests, we have recognized the
importance of procedural safeguards in protecting parental
liberty interests in the care, custody, and control of children.
(continued. . .)
may be considered only if it is established by clear
and convincing evidence, and if it is further found
by clear and convincing evidence that in the
particular family circumstance the wilful misuse
tends to show that, in the future, the parent who
engaged in the wilful misuse will not be able to
cooperate successfully with the other parent in their
shared responsibilities for the child. The court
shall articulate findings of fact whenever relying
upon this factor as part of its determination of the
best interests of the child. For the purposes of
this section, when taken alone, the voluntary
dismissal of a petition for protection from abuse
shall not be treated as prima facie evidence that a
wilful misuse of the protection from abuse process
has occurred.
The CIU Report itself is sealed due to its confidentiality pursuant to
HRS § 571-84(c). See note 5, supra.
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In Doe, we held that parents in need of an interpreter because
of an inability to understand English are entitled to the
assistance of one at any family court hearing in which their
parental rights are substantially affected. Doe, 99 Hawaiʻi at
526, 57 P.3d at 451. Then in T.M., we recognized that
“[i]nherent in the substantive liberty interest that parents
have in the care, custody, and control of their children under
the Hawaiʻi Constitution is the right to counsel to prevent
erroneous deprivation of their parental interests.” 131 Hawaiʻi
at 434, 319 P.3d at 353. We held that in light of the
constitutionally protected liberty interest at stake in a
termination of parental rights proceeding, indigent parents must
be guaranteed the right to court-appointed counsel in
termination of parental rights proceedings under the due process
clause of the Hawaiʻi Constitution. 131 Hawaiʻi at 436, 319 P.3d
at 355.27
27
In so holding, we recognized that, as Justice Stevens discussed in
Lassiter, a state’s decision to deprive a parent of a child is often “more
grievous” than a state’s decision to incarcerate a criminal defendant.
Lassiter, 452 U.S. at 59 (Stevens, J., dissenting). We further pointed out
that, as explained by Justice Blackmun, a parent in termination proceedings
may struggle with legal issues that are “neither simple nor easily defined,”
and with a standard that is “imprecise and open to the subjective values of
the judge.” T.M., 131 Hawaiʻi at 435, 319 P.3d at 354, (citing Lassiter, 452
U.S. at 45) (majority opinion).
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The main populated Hawaiian Islands are some of the most
remote land masses in the world, located about 2,400 miles from
California and 4,000 miles from Japan. When a child relocates
out-of-state with the other parent, even if a court order allows
for visitation during summer or winter vacations, travel
expenses make regular continued contact with the child quite
difficult, if not impossible, for the great majority of Hawaiʻi
parents. Even if a parent can afford travel expenses, a child’s
relocation out-of-state substantially affects the rights of a
custodial parent. As in this case, the prospect of children
relocating out-of-state can be extremely difficult for a parent.
When one parent requests permission to relocate out-of-
state with a child, however, under Hawaiʻi law, the governing
consideration is not a parent’s interests, but whether allowing
relocation is in the “best interests of the child.” See HRS §
571-46(a)(1);28 see also Fisher v. Fisher, 111 Hawaiʻi 41, 50, 137
28
HRS § 571-46(a)(1) provides in general as follows:
Criteria and procedure in awarding custody and visitation;
best interest of the child.
(a) In actions for divorce, separation, annulment,
separate maintenance, or any other proceeding where there
is at issue a dispute as to the custody of a minor child,
the court, during the pendency of the action, at the final
hearing, or any time during the minority of the child, may
(continued. . .)
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P.3d 355, 364 (2006). In Fisher, we discussed our precedent as
well as approaches of other states in relocation cases, and
reaffirmed that the “best interests of the child” standard,
which provides a family court with “broad discretion to weigh
the various factors involved,” also governs relocation cases.
Fisher, 111 Hawaiʻi at 50, 137 P.3d at 364.
A proposed out-of-state relocation with a child undoubtedly
raises difficult questions regarding what is actually in a
child’s “best interests.”29 In addition, a family court’s “best
interests” determination also implicates a child’s rights to
parental contact. See HRS § 576-46(b)(7); see also Sweet v.
Passno, 206 A.D.2d 639, 640 (N.Y. App. Div. 1994) (recognizing
(continued. . .)
make an order for the custody of the minor child as may
seem necessary or proper. 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[.]
29
HRS § 571-46(b), quoted in note 26, supra, sets out a non-exhaustive
list of factors a court is to consider in determining best interests, but the
factors are not geared toward relocation decisions.
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child’s right to maintain a meaningful and nurturing
relationship with parent).
Therefore, an out-of-state relocation affects a parent’s
substantive liberty interest in the care, custody, and control
of a child, but is governed by a child’s best interests, which
includes a child’s right to parental contact. In making these
difficult determinations regarding whether or not to allow
relocation, family courts should consider CIU or any other
available family court social worker reports. Family courts
also have the discretion to appoint guardians ad litem for
children in relocation cases pursuant to HRS § 571-46(a)(8).30
This case, however, also illustrates the importance of family
courts providing parties with sufficient time to review and
respond to custody recommendations in order to comport with
procedural due process.
30
HRS § 571-46(a)(8) provides:
The court may appoint a guardian ad litem to represent the
interest of the child and may assess the reasonable fees
and expenses of the guardian ad litem as costs of the
action, payable in whole or in part by either or both
parties as the circumstances may justify[.]
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V. Conclusion
Based on the reasons above, the ICA’s February 8, 2018
Amended Judgment on Appeal remanding this case to the family
court is affirmed. The family court is to conduct further
proceedings consistent with this opinion.
Blake T. Okimoto, /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Rebecca A. Copeland, /s/ Michael D. Wilson
for respondent
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DJ v. CJ.
Combined Opinion