practice areas

Our first advice to anyone involved with the Hawaii Family Court is to hire someone who specializes in litigating family law cases. Farrell & Associates focuses exclusively on family law and family-related criminal matters, drawing on over sixty (60) years of litigation experience to address your specific needs.

Family law includes several important legal categories:

 

Divorce

Couples divorcing in Hawaii have to decide several important issues that get spelled out in a final Divorce Decree issued by the Family Court: custody and timesharing of children; child support; division of the parties’ assets and debts; and alimony (aka spousal support). A typical Divorce Decree is 15-25 pages of legal details spelling out the parties’ rights and obligations within these broad categories.

Many couples need the assistance of legal counsel and the Family Court to resolve the complexities of their divorce. In other words, they have a contested divorce. Early in the divorce process, the parties will frequently file a Motion for Pre-Decree Relief asking the Court to resolve certain issues on an immediate and temporary basis, such as physical custody and timesharing of children, temporary alimony, and residential matters.

After the Court issues temporary orders to resolve pressing matters, the parties will usually engage in discovery by doing depositions, serving requests for production of documents, and requests for answers to interrogatories. The purpose of discovery is to learn the facts that will help prepare for settlement and trial.

After discovery, the Court will usually require the parties to engage in mediation in an effort to settle. We strongly advise using a private mediator with extensive experience litigating family law matters; many of our favorite mediators are former Family Court judges and prominent family law attorneys. We can also assist parties who choose a low cost option such as Mediation Center of the Pacific.

If the parties cannot resolve their divorce through mediation, they will need to file a Motion to Set asking the court to set their case for trial. The court will hold a hearing on the motion, and if the parties are ready to proceed to trial, the court will set a trial date along with attendant deadlines. Even after the court sets a divorce for trial, the parties will have additional opportunities to settle their divorce at a settlement conference with the judge and/or with the assistance of a Volunteer Settlement Master appointed by the court.

If all else fails, the parties proceed to trial and present their case to a Family Court judge who makes the final decisions regarding the remaining contested issues. Most trials are 1-2 days in duration and are held on Monday and/or Tuesday. Each side has the opportunity to present witnesses, documents and testimony supporting her positions. The court then issues a Decision and Order that forms the basis for the final Divorce Decree.

A typical contested divorce takes six months to two years to resolve depending upon the complexity of the case and the level of acrimony between the parties. Most contested divorces resolve themselves without the need for a final trial because the parties eventually reach agreements.

Couples who are fortunate enough to have an amicable relationship with their spouses can process an uncontested divorce if they can reach agreements regarding each of the areas outlined above. Our strong advice is to hire an attorney to help you process your uncontested divorce in order to avoid mistakes that can cost many thousands of dollars to fix later.

FAQs

Divorce

Custody & Visitation

Assets & Debts

Spousal Support

Child Support

FAQs – Divorce

What is an “uncontested divorce?”
Different lawyers define the term differently. In our practice, we consider a divorce “uncontested” if the parties reach an agreement on all issues before filing the divorce action and the other party signs a divorce decree and supporting documents that we prepare for our client. If the other party files a court action, hires a lawyer, refuses to sign the decree, or otherwise fails to cooperate, then the divorce is “contested.”

Can my spouse and I hire you for an uncontested divorce?
No. A lawyer can only represent one client in a divorce case, and is prohibited by ethics rules from representing both sides. In an uncontested divorce, our client is typically the “plaintiff,” the one who is initiating the divorce. If the other spouse, the “defendant,” chooses not to retain an attorney and signs the divorce decree that we prepare, then the divorce is uncontested.

What is a “no-fault” divorce?
In the old days, a spouse seeking a divorce had to prove adultery, desertion or cruelty by the other spouse. In Hawaii (and most other states), that is no longer the case. A divorce can be obtained without proving “fault” on the part of the other spouse. In fact, the conduct of the spouses is generally irrelevant to the issues in a divorce case, with two major exceptions: (1) the personal conduct of a parent may be relevant in a child custody dispute, and; (2) financial misconduct by a spouse may be relevant to the division of assets and debts, or other financial issues in the divorce.

What is a “default” divorce?
A default occurs where the other spouse, after having been provided with the documents that initiate a divorce case, fails to respond in the time allowed by court rules. Generally, a party served with a summons in a divorce case must file an answer with the court within twenty days. If no answer is filed, the other party may proceed to get a divorce. The typical default divorce occurs when the spouse seeking the divorce simply cannot locate the other and must publish the summons in the newspaper, although default divorces occur in other circumstances, too. This is not the same as an uncontested divorce, where the other spouse is an active, but cooperative, participant in the process.

Who can file for divorce in Hawaii?
In order to file for divorce in Hawaii, you must have a valid marriage and you must be “domiciled” in the State of Hawaii at the time you file. You are domiciled here if you are physically present with the intent to remain for the foreseeable future. If you have not been domiciled or physically present here for six months at the time of filing, you must wait until you have been here that long before asking the court to finalize your divorce. However, you may still file for divorce and ask the court to make temporary orders.

What if my spouse isn’t in Hawaii?
You may still file for divorce here, but the court will not have the authority to make awards of assets and debts that are not located in the State of Hawaii.

How long will my divorce take?
Predicting the length of a divorce case is extremely difficult. As a general rule, an uncontested divorce will take about ninety days, assuming that the parties have agreed on all issues and are responding promptly, and assuming that the court is not overly congested. A contested case requiring a full-blown trial on major issues such as custody, visitation, support, or division of the marital estate will usually last about a year, but some take longer. Cases which settle short of trial fall somewhere in the middle.

What if I need help now?
Many clients are in crisis at the beginning of a divorce case and need temporary orders for custody, support, exclusive use of a home or vehicle, payment of customary expenses, or protection from financial manipulation. The Family Court permits either party to a divorce case to file a Motion for Pre Decree Relief to obtain temporary orders. Usually, these motions are heard on Wednesday afternoons, about three to four weeks after filing. In an extreme emergency the court can be requested to act sooner.

Should I file for a separation?
The law does not require married people to live together. If spouses wish to live apart, they are free to do so without a court order. If they can agree on how to handle their children and financial affairs while living apart, so be it. It is only when they cannot agree on these matters that a Separation Decree will provide temporary orders relating to custody, visitation, support, use of assets and payment of debts. In Hawaii, a Separation Decree is valid for two years, then it automatically dissolves. A separation action in the Family Court is not cheaper or faster than a divorce. In most cases, parties who decide to live apart and whose relationship is so dysfunctional that they need a court to issue temporary orders, are likely to be headed for divorce anyway. The Motion for Pre Decree Relief in a divorce action is usually a faster and better solution. We rarely recommend or commence a separation action.

Should I file for an annulment?
An annulment requires specific proof that the marriage was invalid at the time the parties entered into it. A marriage is invalid if the parties are closely related (an uncle marrying his niece, for example), if one of the parties was underage, if one of the parties was already married to someone else, lacked mental capacity or was afflicted with a “loathsome disease” unknown to the other. An annulment may also be had when the party seeking annulment was the victim of force, duress or fraud, provided there has been no cohabitation (i.e., living together) after the marriage. In Hawaii, it is not a ground for annulment that the marriage was short or that the parties did not have sex. Annulments are extremely rare and difficult to obtain.

What if we change our minds and decide to remain married?
If the parties reconcile and desire to remain married it is a simple matter to dismiss the divorce case by agreement any time prior to the entry of a divorce decree. Once a divorce decree has been signed by a judge and filed with the clerk of the court, the divorce is final. However, the parties are free to remarry if they wish.

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FAQs – Child Custody & Visitation

What is legal custody?
There is no definition of “legal custody” in Hawaii’s statutes or reported court decisions. By long custom and usage, lawyers in Hawaii generally use the term to refer to the ability to make major decisions concerning a child. These decisions include, by way of example, the decision to settle a lawsuit, permission to marry, permission to enlist in the armed forces, or authorization for non-emergency medical procedures where informed consent is required. When one parent has sole legal custody, that parent is authorized to make all decisions relating to the child without the involvement of the other parent. However, the other parent may still challenge a particular decision by bringing a post-divorce motion in the Family Court. “Joint” legal custody means that both parents must agree before any major decision concerning the child may be implemented. Joint legal custody is the preferred approach in most cases, but it may not be practical in cases where there is a high degree of conflict between the parents, or an inability to communicate and work cooperatively.

What is physical custody?
Physical custody is a term that indicates which parent the child lives with most of the time. The other parent gets “visitation.” These terms are unfortunate, because they are emotionally loaded and often result in a great deal of unnecessary litigation unless one parent is willing to concede physical custody to the other. Physical custody can be sole or joint. Hawaii statutory law defines joint custody as any arrangement in which the child has regular and continuing contact with both parents.

What is “full custody?”
There is no such thing, unless the other parent is dead. Even in a situation where one parent has sole legal and physical custody, the other parent still has rights and obligations relating to the child.

How much “visitation” does the other parent get?
Time sharing (also sometimes called “parenting plans”) can be highly individualized. Visitation should take into account such factors as the child’s school and activity schedules, the parents’ work schedules, other adults and children residing in each parent’s home, and transportation. Some common time sharing plans include alternating weekends with the non custodial parent, or a 4-3-3-4 split over a two week period. When one parent has the child for most of the school year, the other typically gets more time during school vacations. When parents have a significant geographical separation, a typical arrangement is two trips per year to the non-custodial parent. Depending on the age of the child, travel arrangements can be somewhat complex, but specificity written into a divorce decree can avoid unnecessary fights later.

What is “supervised visitation?”
Supervised visitation is usually ordered when one parent has a significant problem, placing the child at risk if left with that parent unless there is additional supervision. Typically these cases involve a parent who is mentally ill, is violent, is a substance abuser, is a flight risk, or is in similar situations. Supervised visitation is generally not favored as a long-term solution, and can be difficult for both parents and children.

What if I want to relocate with the children?
If both parents agree, this is not a problem. When parents don’t agree, the parent who has sole legal and physical custody may relocate off-island with the child. However, the other parent may be entitled to seek a change in custody, or an order barring removal of the child from the state. In most cases, it is better for the relocating parent to first seek permission from the other parent or the court, rather than face litigation later. In a relocation case, the court will focus on whether the relocation is in the best interest of the child, not merely whether it is convenient or desirable for the relocating parent.

At what age can the child decide?
At the age of 18, the child becomes an adult and can live wherever he or she wishes. Short of that, there is no specific age under Hawaii law at which a child can choose his custodial parent. Hawaii statutes do provide that the “preferences” of a child of “suitable age and discretion” should be given “due weight and deference” by the court. Implementing this statutory directive is highly problematic. Most Family Court judges and practitioners believe it is damaging to a child to be asked to choose between parents.

How does the judge decide custody disputes?
When parents agree, it is extremely unusual for a judge to refuse to approve their agreement. However, when parents cannot agree, and the court must decide, there is no magic formula for child custody. It is important to remember that the best interest of the child is the court’s paramount consideration, and fairness to each parent is entirely secondary. Courts often try to order arrangements that are least disruptive for the child and continue established patterns. Courts will try to protect the child from parental disputes and violence, and from parents who have drug, mental health, criminal, or other lifestyle issues. Educational opportunity, environment, and parents’ desires all play a role, as do the child’s age, health, and other factors. Frequently, the court will seek input from independent investigators, therapists, or others before making a decision. Custody litigation is extremely complex and challenging, and each case turns on its own unique facts.

Can the Hawaii court decide my child’s custody?
Interstate custody disputes are extremely complex. As a practical matter, the two judges from the two different states where custody proceedings are pending will confer and decide which state would be the best forum. Generally speaking, an initial custody determination should be made in the child’s “home state,” that is, the place where the child was last residing with a parent for a continuous six-month period at the time the action was filed. Once an initial custody determination has been made, the state that made it has continuing “exclusive jurisdiction” to modify that determination. However, a temporary “emergency” order can be made anywhere the child may be, if there is abuse or threats of abuse to a parent or the child.

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FAQs – Assets & Debts

How does the judge decide what I’m entitled to?
The first thing to remember is that if the parties agree on the division of assets and debts, the judge doesn’t have to decide it. If the parties can’t agree, the judge will decide at trial. Hawaii follows the “partnership model” for dividing the marital estate. The marital estate consists of all assets presently owned by either party or both and all debts owed by either party or both. It does not include “separate property.” Separate property is very rare, although it may exist if the parties entered into a premarital agreement or in certain other, limited circumstances. In allocating the net value of the marital estate, each spouse will get “off the top” their net worth on the date of marriage, and the value of any gifts or inheritances received during marriage (and not gifted over by the recipient spouse to the two of them). The remaining value will be divided equally. Most cases do not involve separate property, net worth on date of marriage, or gifts and inheritances. In these cases, the net value of the marital estate will usually be divided 50/50, although the judge can vary from an equal split if there is a valid reason for doing so.

Does title matter?
Yes and No. Title does not matter in deciding how much of the marital estate each party is entitled to receive. Title does matter when there is a claim by one spouse that certain property never became part of the marital estate, or if there is a claim that property owned by one spouse at marriage or acquired later by gift or inheritance was not, in turn, gifted by that spouse to the both of them. Title also matters in terms of efficiently dividing the marital estate. For example, if there are two automobiles with the same net value, the one titled in husband’s name will likely be awarded to husband and the one in wife’s name will be awarded to wife. If both cars are jointly owned, one will probably go to husband and one will go to wife. If husband’s car is worth $5,000 more than wife’s, he may get the car in his name but be ordered to pay her $2,500.

What about real estate?
Houses, land and condos present unique issues. In most cases, the preferred approach is to either sell the property or for one party to buy out the other’s marital interest. The latter scenario usually requires an appraisal. When both parties are obligated on the mortgage, a buy out will usually require a refinance, as well. It is not illegal, but it is usually not a very good idea to continue to co-own real property post divorce, or to try to convey it to children.

What about retirement?
In most cases it is a better plan to try to trade off assets and debts in such a way that it does not become necessary to divide a retirement plan. Sometimes, it just can’t be avoided. Broadly speaking, there are two types of retirement plans. The first are fixed dollar retirement savings accounts, such as IRA, 401K, TSP, deferred compensation, and profit sharing plans. These accounts have a specific dollar value, but because of the tax liability associated with early withdrawal, retirement dollars are not worth the same as real dollars. The account owner may withdraw and pay over to the other spouse without incurring tax penalties by obtaining a Qualified Domestic Relations Order (QDRO). However, such an order may cost a significant amount in attorney’s fees. Unless the receiving spouse can roll over the funds into a qualified retirement account, there will probably be tax liability associated with the receipt of these funds. A CPA or tax lawyer should always be consulted in these cases before finalizing any division of assets and debts that includes division of a retirement account. The second type of retirement plan is the defined benefit plan, a traditional pension. Military, state and federal civil service, and some private employers’ pension funds are examples of such a plan. Typically, the retiree will receive a monthly amount based upon length of service, final salary, age at retirement or other factors defined by a formula. This amount will continue for a defined period, or the life of the retiree. It may or may not offer a survivor benefit. In divorce, the non-member’s share is a fraction of what the retiree will receive if, as and when it is received. Typically, the fraction is computed by length of marriage overlapping membership in the plan, divided by total length of membership in the plan, divided by two. The non-member may or may not be able to get direct payment of a share of the member’s monthly retirement check directly from the plan administrator, but if so, a QDRO will be required.

What about businesses?
A business will almost always be awarded to the proprietor, but the other spouse is entitled to be paid for the non-owner’s marital share. In rare cases, a business can be sold or divided in-kind, but this is a tricky proposition. In divorce, the value of the business is usually a difficult issue. Where a business is highly dependent on the personal drawing power of the owner, the value is often not very high, even though the business is generating a high amount of income. A professional business appraiser is often required to resolve these cases.

How will bankruptcy affect my divorce?
The interplay of bankruptcy and divorce is a complex subject, and if either party to a divorce is contemplating bankruptcy both spouses should consult a qualified bankruptcy attorney. Often, divorcing couples will choose to file a joint bankruptcy first. After discharge, there probably will not be much in the way of assets or debts to fight over. A more troublesome problem is when one spouse is obligated in a divorce decree to pay a joint debt, but gets a discharge in bankruptcy post divorce. In that case, the creditor can still look to the non bankrupt former spouse for payment. Generally, child support and alimony obligations are not dischargeable in bankruptcy.

How will divorce affect my taxes?
We are not a tax lawyers or CPAs. In cases where there is a possibility of complex tax implications, we always advise clients to consult with a qualified tax professional before signing a divorce decree. With that caveat, the following are some simple tax issues in divorce. Property awarded to a spouse in a divorce decree is not income, however, the property may come with other tax implications such as capital gains liability for property which has appreciated during marriage, or income tax liability when one attempts to draw on retirement accounts. Alimony, subject to some limitations, is tax deductible to the payor, and taxable income to the recipient. Child support is not tax deductible to the payor, and is not taxable income to the recipient. The tax dependency exemption automatically follows the parent awarded physical custody, unless the divorce decree specifies otherwise. Spouses are usually jointly liable for any tax liabilities resulting from a previously filed joint return, although the IRS does offer possible relief under the “innocent spouse rule.” To file a joint tax return, the spouses must have been married to each other for the entire calendar year.

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FAQs – Spousal Support

Who is eligible for spousal support?
There is a great deal of misinformation about spousal support, also called “alimony.” People often believe that there must be a minimum period of marriage, or that a spouse with a job is ineligible. In Hawaii, the only requirement for alimony is a valid marriage and that the spouse seeking it did not waive the right to seek alimony in a pre-marital, marital or divorce agreement. A party to an unmarried relationship cannot obtain alimony, but if there is a child born of the relationship, the court will order child support.

How is the amount of spousal support determined?
Unlike child support, where there is a rigid formula, there are no guidelines or worksheets for spousal support. The court will usually approve whatever the parties agree upon. When there is no agreement, and the court must decide, the central issues are the need of the party seeking alimony and the ability of the other party to pay. There are subjective factors that the court considers, such as length of the marriage, what financial condition each party will be left in after the division of assets and debts, and the post divorce ability of each spouse to earn income.

Can spousal support be modified after divorce?
If a party waived alimony in a divorce decree, it cannot later be ordered. However, if alimony of a certain amount and duration is specified in a divorce decree, it can be modified if there is a material change in circumstances, even if the decree says that alimony is non-modifiable. Remarriage usually terminates the right to receive alimony, unless the decree says otherwise.

Can spousal support be paid through CSEA?
Yes. An order for income withholding can specify a total amount that includes child support and spousal support to be deducted by the employer and sent to the Child Support Enforcement Agency.

What if my ex fails to pay spousal support?
Generally, the same remedies are available as for payment of child support, except that CSEA will not enforce a spousal support order except in conjunction with a child support order.

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FAQs – Child Support

How is child support determined?
Hawaii has a mandatory formula which the court will follow called the “Child Support Guidelines.” The variables in the formula are the number of children, the gross monthly incomes of the parents, and the medical insurance and day care costs for the children. This data is entered into a worksheet, and the required amount is then computed. Generally, the parties are not allowed to deviate from the amount shown on the worksheet, but there are rare exceptions.

Why must child support be paid through CSEA?
Because non-payment of child support was a chronic problem, Hawaii passed legislation many years ago requiring that it be automatically deducted from the obligor’s paycheck, just like taxes. The employer withholds the support amount from each paycheck, and sends it to the Child Support Enforcement Agency, which then cuts a check to the custodial parent. Although there are cases of delays and errors, for the most part this has been a very efficient approach. However, the parties can opt for direct payment from one parent to the other if both agree in writing, if the children have never been on welfare, and if the payor has never been delinquent.

How does custody affect child support?
Currently, the guidelines assume that the non-custodial parent will have up to 143 days per year of “visitation” with the child. If the time-sharing plan provides more than that, the non-custodial parent gets a pro rata reduction for each day beyond 143. If the time sharing plan provides equal time to both parents, another set of computations are used which significantly reduces child support. Many people believe that neither parent pays child support to the other in a joint physical custody or equal time-sharing arrangement. This is not true, except when the gross incomes of the parents are close to equal.

How does alimony affect child support?
Child support is based on the gross incomes of the parents. If one parent pays alimony to the other, the alimony is deducted from his gross income and added to the gross income of the recipient. If the alimony recipient is also the custodial parent, receipt of alimony means less child support.

How long is the support obligation?
In Hawaii, the obligation to support children runs at least until age 18 or high school graduation, whichever occurs last. The Child Support Enforcement Agency will not enforce a support obligation beyond this point. However, the court can order support to continue beyond high school if the child is attending college on a full-time basis or is enrolled in an accredited vocational training program. In this situation, the child support amount will not automatically be computed using the guidelines formula. Instead, the court will consider the reasonable needs of the child, both parents’ ability to pay, and the college student’s ability to contribute to his own support through scholarships, loans, or part-time work.

What about educational expenses?
If the parties agree, or if the court orders it after a trial, one or both parents may be obligated to pay private educational expenses from kindergarten through high school. Private education expenses are paid in addition to child support. These expenses are usually defined as tuition, books, and mandatory fees. School lunches, transportation, school supplies, and clothing are normally considered to be covered by the payment of child support. Preschool programs prior to kindergarten are normally considered to be day care, which is covered by the payment of child support. When a child has previously been attending private school, the court will normally order that this continue. A divorce decree or paternity judgment does not have to mention private education expenses; it is an issue that the parties can defer to a later time.

How can I modify a support order?
The fastest way to get child support increased or decreased is to file a motion (or, if there is an agreement, a “stipulation”) in Family Court. Either party can ask for a modification whenever there has been a “material change in circumstances,” or not more than once every three years without demonstrating a material change.  Most often, the change is a significant increase or decrease in one party’s income. In Hawaii, child support can only be modified retroactive to the date of the request, not to the date of the change in circumstances. Therefore, the party who will benefit from the change should seek it promptly. In cases where child support is paid through the Child Support Enforcement Agency, a party can request that the agency initiate a modification through its administrative process. While this process does not require an attorney, it may take longer than Family Court. In many cases,  so it is well worth the attorney’s fees to hire a lawyer and seek modification through Family Court, instead of using the Child Support Enforcement Agency.

How can I enforce a support order?
A child support order, whether it was issued in Hawaii or elsewhere, can be enforced just about anywhere the obligor or his property can be found. Methods of enforcement include garnishment of wages and seizure of property. In extreme cases, the court can hold the obligor in contempt and order incarceration until the support is paid. Through the Child Support Enforcement Agency, other remedies against those who fail or refuse to pay include tax refund intercept, and revocation of licenses and passports.

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Paternity

A paternity case is like a divorce case for a couple who never married but had one or more children during the course of their relationship. A paternity matter begins when either the mother or father of a child files a Petition for Paternity asking the Court to adjudge that a specific person is the child’s father and to make orders regarding custody, time-sharing (or visitation), and child support.

The Family Court can (and frequently will) determine whether child support is due and owing from the date of birth and the amount. Because of this, the non-custodial parent may leave a paternity hearing having a child support “arrearage” even though there was no child support order previously in place. Usually, if the parties resided together for a period of time, the Court will determine that the family was an “intact family” and therefore not award child support for that period.

Either parent has a right to ask for custody of a child. Unless the Court sees substantial problems in how the parties communicate, the court will usually award the parties joint legal custody of the child and require the parties to reach consensus regarding major decisions involving the child. Even though the court frequently defaults to joint physical custody, the court will consider many factors in determining whether to award one party or the other primary physical custody of the child or to award the parties joint physical custody with equal time-sharing. Some of those factors include: history of care-taking, the age of the child, the child’s physical and emotional needs, allegations of abuse, and a parent’s ability to provide a safe and appropriate home for the child.

Child support is determined by the Hawaii Child Support Guidelines unless a party can prove that one (1) of ten (10) exceptions require the Court to deviate from the Guidelines.  The court rarely finds exceptions to the Guidelines because they rarely apply, therefore, you should expect that the court will follow the Guidelines.

In order for the Family Court to have jurisdiction over a paternity case,  the child who is the subject of the case must have actually been born. The court does not have jurisdiction over unborn children.

FAQs

Paternity

Custody & Visitation

Child Support

FAQs – Paternity

How is paternity established?
There are three ways. A child born during marriage is presumed to be the “lawful issue” of both spouses. There is no need to “establish paternity” for such a child unless someone is claiming that the husband is not the child’s father. When a child is born to persons who are not married, the most common way that paternity is established in Hawaii is that the father signs an affidavit of paternity at a “birthing facility” when the child is born (this works only for children born after 1997). The other way is to file a petition to establish paternity in the Family Court. If paternity has already been established under the law of some other state, Hawaii will usually give full credit to that other state’s order.

How do I get custody now?
If you are the mother, and paternity has never been established, you have custody until there is a court order awarding custody. If paternity has been established, or if you are a father, you must file a petition with the Family Court seeking an award of custody.

How can I get to see my child?
If you are a parent and are not being permitted to see your child, but you are not seeking custody, then you must file a petition asking for a visitation schedule.

How can I get child support?
There are two ways that child support can be established. The faster way is usually to file a motion in the Family Court. This usually requires an attorney, and you will incur attorney’s fees, but in most cases you will begin to receive child support much sooner. If the other parent is not in Hawaii, or you can’t afford to hire an attorney, the answer is to apply to the Child Support Enforcement Agency for establishment of support through its administrative process. This is slower, but is a minimal cost to you, and the agency has some special procedures available for dealing with out-of-state parents that are not available to the private bar.

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FAQs – Child Custody & Visitation

What is legal custody?
There is no definition of “legal custody” in Hawaii’s statutes or reported court decisions. By long custom and usage, lawyers in Hawaii generally use the term to refer to the ability to make major decisions concerning a child. These decisions include, by way of example, the decision to settle a lawsuit, permission to marry, permission to enlist in the armed forces, or authorization for non-emergency medical procedures where informed consent is required. When one parent has sole legal custody, that parent is authorized to make all decisions relating to the child without the involvement of the other parent. However, the other parent may still challenge a particular decision by bringing a post-divorce motion in the Family Court. “Joint” legal custody means that both parents must agree before any major decision concerning the child may be implemented. Joint legal custody is the preferred approach in most cases, but it may not be practical in cases where there is a high degree of conflict between the parents, or an inability to communicate and work cooperatively.

What is physical custody?
Physical custody is a term that indicates which parent the child lives with most of the time. The other parent gets “visitation.” These terms are unfortunate, because they are emotionally loaded and often result in a great deal of unnecessary litigation unless one parent is willing to concede physical custody to the other. Physical custody can be sole or joint. Hawaii statutory law defines joint custody as any arrangement in which the child has regular and continuing contact with both parents. Unfortunately, the Hawaii Child Support Guidelines define the term differently: Equal time with both parents. These conflicting definitions and the fact that use of the term “joint physical custody” can have unintended effects on child support are another source of unnecessary custody litigation.

What is “full custody?”
There is no such thing, unless the other parent is dead. Even in a situation where one parent has sole legal and physical custody, the other parent still has rights and obligations relating to the child.

How much “visitation” does the other parent get?
Time-sharing (also sometimes called “parenting plans”) can be highly individualized. Visitation should take into account such factors as the child’s school and activity schedules, the parents’ work schedules, other adults and children residing in each parent’s home, and transportation. Some common time sharing plans include alternating weekends with the non custodial parent, or a 4-3-3-4 split over a two week period. When one parent has the child for most of the school year, the other typically gets more time during school vacations. When parents have a significant geographical separation, a typical arrangement is two trips per year to the non-custodial parent. Depending on the age of the child, travel arrangements can be somewhat complex, but specificity written into a divorce decree can avoid unnecessary fights later.

What is “supervised visitation?”
Supervised visitation is usually ordered when one parent has a significant problem, placing the child at risk if left with that parent unless there is additional supervision. Typically these cases involve a parent who is mentally ill, is violent, is a substance abuser, is a flight risk, or is in similar situations. Supervised visitation is generally not favored as a long-term solution, and can be difficult for both parents and children.

What if I want to relocate with the children?
If both parents agree, this is not a problem. When parents don’t agree, the parent who has sole legal and physical custody may relocate off-island with the child. However, unless it can be shown that the relocation was contemplated at the time of divorce, a relocation will be considered a “material change in circumstances” and the other parent will be entitled to seek a change in custody, or an order barring removal of the child from the state. In most cases, it is better for the relocating parent to first seek permission from the other parent or the court, rather than face litigation later. In a relocation case, the court will focus on whether the relocation is in the best interest of the child, not merely whether it is convenient or desirable for the relocating parent.

At what age can the child decide?
At the age of 18, the child becomes an adult and can live wherever he or she wishes. Short of that, there is no specific age under Hawaii law at which a child can choose his custodial parent. Hawaii statutes do provide that the “preferences” of a child of “suitable age and discretion” should be given “due weight and deference” by the court. Implementing this statutory directive is highly problematic. Most Family Court judges and practitioners believe it is damaging to a child to be asked to choose between parents.

How does the judge decide custody disputes?
When parents agree, it is extremely unusual for a judge to refuse to approve their agreement. However, when parents cannot agree, and the court must decide, there is no magic formula for child custody. It is important to remember that the best interest of the child is the court’s paramount consideration, and fairness to each parent is entirely secondary. Courts often try to order arrangements that are least disruptive for the child and continue established patterns. Courts will try to protect the child from parental disputes and violence, and from parents who have drug, mental health, criminal, or other lifestyle issues. Educational opportunity, environment, and parents’ desires all play a role, as do the child’s age, health, and other factors. Frequently, the court will seek input from independent investigators, therapists, or others before making a decision. Custody litigation is extremely complex and challenging, and each case turns on its own unique facts.

Can the Hawaii court decide my child’s custody?
Interstate custody disputes are extremely complex. As a practical matter, the two judges from the two different states where custody proceedings are pending will confer and decide which state would be the best forum. Generally speaking, an initial custody determination should be made in the child’s “home state,” that is, the place where the child was last residing with a parent for a continuous six-month period at the time the action was filed. Once an initial custody determination has been made, the state that made it has continuing “exclusive jurisdiction” to modify that determination. However, a temporary “emergency” order can be made anywhere the child may be, if there is abuse or threats of abuse to a parent or the child.

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FAQs – Child Support

How is child support determined?
Hawaii has a mandatory formula which the court will follow called the “Child Support Guidelines.” The variables in the formula are the number of children, the gross monthly incomes of the parents, and the medical insurance and day care costs for the children. This data is entered into a worksheet, and the required amount is then computed. Generally, the parties are not allowed to deviate from the amount shown on the worksheet, but there are rare exceptions.

Why must child support be paid through CSEA?
Because non-payment of child support was a chronic problem, Hawaii passed legislation many years ago requiring that it be automatically deducted from the obligor’s paycheck, just like taxes. The employer withholds the support amount from each paycheck, and sends it to the Child Support Enforcement Agency, which then cuts a check to the custodial parent. Although there are cases of delays and errors, for the most part this has been a very efficient approach. However, the parties can opt for direct payment from one parent to the other if both agree in writing, if the children have never been on welfare, and if the payor has never been delinquent.

How does custody affect child support?
Currently, the guidelines assume that the non-custodial parent will have up to 143 days per year of “visitation” with the child. If the time-sharing plan provides more than that, the non-custodial parent gets a pro rata reduction for each day beyond 143. If the time-sharing plan provides equal time to both parents, another set of computations are used which significantly reduces child support. Many people believe that neither parent pays child support to the other in a joint physical custody or equal time-sharing arrangement. This is not true, except when the gross incomes of the parents are close to equal.

How long is the support obligation?

In Hawaii, the obligation to support children runs at least until age 18 or high school graduation, whichever occurs last. The Child Support Enforcement Agency will not enforce a support obligation beyond this point. However, the court can order support to continue beyond high school if the child is attending college on a full-time basis or is enrolled in an accredited vocational training program. In this situation, the child support amount will not automatically be computed using the guidelines formula. Instead, the court will consider the reasonable needs of the child, both parents’ ability to pay, and the college student’s ability to contribute to his own support through scholarships, loans, or part-time work.

What about educational expenses?
If the parties agree, or if the court orders it after a trial, one or both parents may be obligated to pay private educational expenses from kindergarten through high school. Private education expenses are paid in addition to child support. These expenses are usually defined as tuition, books, and mandatory fees. School lunches, transportation, school supplies, and clothing are normally considered to be covered by the payment of child support. Preschool programs prior to kindergarten are normally considered to be day care, which is covered by the payment of child support. When a child has previously been attending private school, the court will normally order that this continue. A divorce decree or paternity judgment does not have to mention private education expenses; it is an issue that the parties can defer to a later time.

How can I modify a support order?
The fastest way to get child support increased or decreased is to file a motion (or, if there is an agreement, a “stipulation”) in Family Court. Either party can ask for a modification whenever there has been a “material change in circumstances,” or not more than once every three years without demonstrating a material change.  Most often, the change is a significant increase or decrease in one party’s income. In Hawaii, child support can only be modified retroactive to the date of the request, not to the date of the change in circumstances. Therefore, the party who will benefit from the change should seek it promptly. In cases where child support is paid through the Child Support Enforcement Agency, a party can request that the agency initiate a modification through its administrative process. While this process does not require an attorney, it can be slow. In many cases, it is well worth the attorney’s fees to hire a lawyer and seek modification through Family Court, instead of using the Child Support Enforcement Agency.

How can I enforce a support order?
A child support order, whether it was issued in Hawaii or elsewhere, can be enforced just about anywhere the obligor or his property can be found. Methods of enforcement include garnishment of wages and seizure of property. In extreme cases, the court can hold the obligor in contempt and order incarceration until the support is paid. Through the Child Support Enforcement Agency, other remedies against those who fail or refuse to pay include tax refund intercept, and revocation of licenses and passports.

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Restraining Orders

Domestic violence is an unfortunate reality confronting too many women and men in American society. One in four women and one in seven men will experience severe abuse at the hands of an intimate partner over the course of their lifetimes. The risk of domestic violence increases during high stress periods such as divorce or the ending of an intimate relationship.

Someone experiencing abuse by a household member can seek protection through the Family Court by filing a Petition for an Order for Protection. The petition can be filed on behalf of the petitioner and/or on behalf of a household member; usually the household member is a child. If the petition sufficiently alleges physical abuse or extreme psychological abuse, the Family Court will issue a Temporary Restraining Order (TRO). The court will also schedule a hearing to occur within fifteen (15) days of the filing date of the petition. At hearing, the burden is on the petitioner to prove that she/he has been abused by the respondent. Each side can present exhibits and witnesses, and a typical hearing lasts thirty minutes to two (2) hours. If the parties need more time to present their case, then the court can continue the hearing or set the case for a later trial.

Unfortunately, many people use the restraining order process as a weapon to obtain custody in a divorce or paternity matter. Hawaii Revised Statutes Section 571-46(a)(9) provides a presumption against custody if a parent is found to have committed “family violence.” If the Family Court issues an Order for Protection, the judge has also found that family violence has been committed by the respondent. While the presumption is “rebuttable,” an Order for Protection makes fighting for custody an uphill battle.

Whether you are seeking protection from an abusive partner or defending against a wrongfully filed petition, the stakes are high, and you should have legal representation. Farrell & Associates attorneys are some of Hawaii’s most experienced lawyers representing both petitioners and respondents in TRO proceedings.

FAQs

I’ve been abused. What should I do?
The first thing to do is to call the police. The police will usually arrest the perpetrator, and will issue a twenty-four hour stay-away order. This order is intended to give the victim time to obtain a Temporary Restraining Order from the court. The next step is to contact the Adult Services Branch of the Family Court (538-5959) to schedule an appointment to file a petition and request for TRO. The TRO prevents the abuser from having contact with the victim, and from coming near the victim’s place of residence or employment. It also provides for temporary custody of children. If there is a reasonable possibility that the abuser may ignore the order, consider moving temporarily to a safe place, or shelter (call 841-0822 for information on domestic violence shelters). Remember that once a restraining order is issued, you are not permitted to have any contact with the abuser. Obviously, this can make it very difficult to negotiate a divorce agreement or have an uncontested divorce.

I’ve been served with a restraining order. What now?
The most important thing is to read it carefully and not violate it. DO NOT CONTACT THE PETITIONER. Any violation of the restraining order can subject you to immediate arrest and a criminal prosecution—even if the restraining order itself is later dissolved. Generally, these orders provide for a one-time visit to the residence, with police escort, to pick up clothing and personal effects. Other than that, stay away and seek the assistance of an attorney. A hearing will be held in about ten days. At that time, the court will decide whether to dissolve or continue the restraining order.

I’ve been charged with abuse of a family member. What now?
Remain calm, and do not argue with or resist the police. You should cooperate by providing basic information such as your address, phone, age, etc. However, do not make any statements to the police about the incident or try to “talk them out of” making the arrest. If you are injured, tell the police and ask for medical assistance and that photos of your injuries be taken. Post bail (typically, $1,000 in cash), and then retain an attorney immediately. If you are arraigned before you can post bail, enter a plea of “not guilty” and request a jury trial.

I’ve been reported to Child Welfare Services. What now?
Remain calm. Understand that CWS is legally authorized to question your child outside of your presence and without your permission, and also to have the child examined by a medical professional. CWS is also authorized to place your child in temporary foster custody. Generally speaking, it is a bad idea to submit to an interview by CWS and an even worse idea to sign a voluntary services agreement without first consulting with an attorney. Although it can be expensive, hiring an attorney at the very outset may save you much heartache and even more in attorney’s fees down the road.

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Child Support

When the Family Court determines custody and timesharing of a child, the Court will almost always determine that one parent owes child support to the other for the support and maintenance of the child. Pursuant to Hawaii Revised Statutes Section 571-52.5, the Court is required to apply the Hawaii Child Support Guidelines to determine the amount of child support to be paid. The most recent version of the Guidelines are reflected in the 2014 Child Support Guidelines Worksheet (“CSGW”).

The inputs that determine the amount of child support you may have to pay – or will be receiving – are: 1) each parent’s monthly gross income from all sources, 2) the number of children, 3) credits for child care expenses, 4) credit for health insurance, and 5) timesharing. If one parent has fewer than 143 overnights with the child per year, then we use the “normal” timesharing guidelines. If the parties have equal timesharing, or if the non-custodial parent has more than 143 overnights per year, then we apply the “extensive timesharing” guidelines.

The Court can deviate from the CSGW if one (1) of ten (10) exceptions to the Guidelines exists. Be advised that the Court rarely finds that there is an exception to following the Guidelines because the exceptions rarely apply – hence why they are considered “exceptions.”

Child support is almost always paid through the Child Support Enforcement Agency (CSEA), and pursuant to Hawaii law, it is almost always paid by way of an Order Withholding Income (OWI) – otherwise known as a garnishment. Because garnishment is the law in Hawaii, you should not consider it (and employers do not consider it) a statement about your character if you have to pay child support pursuant to an OWI.

The CSEA enforces child support orders and assists the receiving parent in the collection of past due support. If there has been a significant change in your financial circumstances – for example, your income increases or decreases by more than 10% or day care or health insurance expenses change substantially – then you may request that CSEA or the Family Court modify child to take account of the change. You may automatically request a review of child support once every three years even when there has been no change in the financial circumstances of the parties.

FAQs

How is child support determined?
Hawaii has a mandatory formula which the court will follow called the “Child Support Guidelines.” The variables in the formula are the number of children, the gross monthly incomes of the parents, and the medical insurance and day care costs for the children. This data is entered into a worksheet, and the required amount is then computed. Generally, the parties are not allowed to deviate from the amount shown on the worksheet, but there are rare exceptions.

Why must child support be paid through CSEA?
Because non-payment of child support was a chronic problem, Hawaii passed legislation many years ago requiring that it be automatically deducted from the obligor’s paycheck, just like taxes. The employer withholds the support amount from each paycheck, and sends it to the Child Support Enforcement Agency, which then cuts a check to the custodial parent. Although there are cases of delays and errors, for the most part this has been a very efficient approach. However, the parties can opt for direct payment from one parent to the other if both agree in writing, if the children have never been on welfare, and if the payor has never been delinquent.

How does custody affect child support?
Currently, the guidelines assume that the non-custodial parent will have up to 143 days per year of “visitation” with the child. If the time-sharing plan provides more than that, the non-custodial parent gets a pro rata reduction for each day beyond 143. If the time-sharing plan provides equal time to both parents, another set of computations are used which significantly reduces child support. Many people believe that neither parent pays child support to the other in a joint physical custody or equal time-sharing arrangement. This is not true, except when the gross incomes of the parents are close to equal.

How does alimony affect child support?
Child support is based on the gross incomes of the parents. If one parent pays alimony to the other, the alimony is deducted from his gross income and added to the gross income of the recipient. If the alimony recipient is also the custodial parent, receipt of alimony means less child support.

How long is the support obligation?
In Hawaii, the obligation to support children runs at least until age 18 or high school graduation, whichever occurs last. The Child Support Enforcement Agency will not enforce a support obligation beyond this point. However, the court can order support to continue beyond high school if the child is attending college on a full-time basis or is enrolled in an accredited vocational training program. In this situation, the child support amount will not automatically be computed using the guidelines formula. Instead, the court will consider the reasonable needs of the child, both parents’ ability to pay, and the college student’s ability to contribute to his own support through scholarships, loans, or part-time work.

What about educational expenses?
If the parties agree, or if the court orders it after a trial, one or both parents may be obligated to pay private educational expenses from kindergarten through high school. Private education expenses are paid in addition to child support. These expenses are usually defined as tuition, books, and mandatory fees. School lunches, transportation, school supplies, and clothing are normally considered to be covered by the payment of child support. Preschool programs prior to kindergarten are normally considered to be day care, which is covered by the payment of child support. When a child has previously been attending private school, the court will normally order that this continue. A divorce decree or paternity judgment does not have to mention private education expenses; it is an issue that the parties can defer to a later time.

How can I modify a support order?
The fastest way to get child support increased or decreased is to file a motion (or, if there is an agreement, a “stipulation”) in Family Court. Either party can ask for a modification whenever there has been a “material change in circumstances,” or not more than once every three years without demonstrating a material change. Most often, the change is a significant increase or decrease in one party’s income. In Hawaii, child support can only be modified retroactive to the date of the request, not to the date of the change in circumstances. Therefore, the party who will benefit from the change should seek it promptly. In cases where child support is paid through the Child Support Enforcement Agency, a party can request that the agency initiate a modification through its administrative process. While this process does not require an attorney, it can be slow. In many cases, it is well worth the attorney’s fees to hire a lawyer and seek modification through Family Court, instead of using the Child Support Enforcement Agency.

How can I enforce a support order?
A child support order, whether it was issued in Hawaii or elsewhere, can be enforced just about anywhere the obligor or his property can be found. Methods of enforcement include garnishment of wages and seizure of property. In extreme cases, the court can hold the obligor in contempt and order incarceration until the support is paid. Through the Child Support Enforcement Agency, other remedies against those who fail or refuse to pay include tax refund intercept, and revocation of licenses and passports.

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Post-Divorce/Post-Paternity

For better and worse, when children are involved, the parties can continue litigating long after the initial custody and child support orders have been issued. In divorce matters, the parties may file a Motion for Post-Decree Relief; in paternity matters, the parties may file a Motion for Relief After Judgment or Order.

Post-Divorce matters also include enforcement of terms in the Divorce Decree and the adjudication of financial matters that remained unresolved – e.g., division of retirement or spousal support.

It is no longer the case that there needs to be a “material change in circumstances” in order to get a hearing or trial before the Family Court regarding child-related matters. But the Court still usually requires that there have been some change in the child’s (or parent’s) circumstances requiring the court to make adjustments in the best interests of the child. If there has been no change that would affect the best interest of the child,  the Court will likely deny your motion.

The court will often appoint a Custody Evaluator (“CE”) to investigate the facts and circumstances relevant to custody and time-sharing of the subject child(ren).   Many times a custody evaluation includes a psychological evaluation of the parents.Custody Evaluators are mental health professionals approved by the Family Court in accordance with Hawaii Revised Statutes Section 571-46.4. Many times, speaking to the CE is the only opportunity for a child’s preferences to be heard because Hawaii judges very rarely allow children to testify in court. In Hawaii, there are a limited number of qualified CEs from which to choose.

FAQs

What is legal custody?
There is no definition of “legal custody” in Hawaii’s statutes or reported court decisions. By long custom and usage, lawyers in Hawaii generally use the term to refer to the ability to make major decisions concerning a child. These decisions include, by way of example, the decision to settle a lawsuit, permission to marry, permission to enlist in the armed forces, or authorization for non-emergency medical procedures where informed consent is required. When one parent has sole legal custody, that parent is authorized to make all decisions relating to the child without the involvement of the other parent. However, the other parent may still challenge a particular decision by bringing a post-divorce motion in the Family Court. “Joint” legal custody means that both parents must agree before any major decision concerning the child may be implemented. Joint legal custody is the preferred approach in most cases, but it may not be practical in cases where there is a high degree of conflict between the parents, or an inability to communicate and work cooperatively.

What is physical custody?
Physical custody is a term that indicates which parent the child lives with most of the time. The other parent gets “visitation.” These terms are unfortunate, because they are emotionally loaded and often result in a great deal of unnecessary litigation unless one parent is willing to concede physical custody to the other. Physical custody can be sole or joint. Hawaii statutory law defines joint custody as any arrangement in which the child has regular and continuing contact with both parents.

What is “full custody?”
There is no such thing, unless the other parent is dead. Even in a situation where one parent has sole legal and physical custody, the other parent still has rights and obligations relating to the child.

How much “visitation” does the other parent get?
Time sharing (also sometimes called “parenting plans”) can be highly individualized. Visitation should take into account such factors as the child’s school and activity schedules, the parents’ work schedules, other adults and children residing in each parent’s home, and transportation. Some common time sharing plans include alternating weekends with the non custodial parent, or a 4-3-3-4 split over a two week period. When one parent has the child for most of the school year, the other typically gets more time during school vacations. When parents have a significant geographical separation, a typical arrangement is two trips per year to the non-custodial parent. Depending on the age of the child, travel arrangements can be somewhat complex, but specificity written into a divorce decree can avoid unnecessary fights later.

What is “supervised visitation?”
Supervised visitation is usually ordered when one parent has a significant problem, placing the child at risk if left with that parent unless there is additional supervision. Typically these cases involve a parent who is mentally ill, is violent, is a substance abuser, is a flight risk, or is in similar situations. Supervised visitation is generally not favored as a long-term solution, and can be difficult for both parents and children.

What if I want to relocate with the children?
If both parents agree, this is not a problem. When parents don’t agree, the parent who has sole legal and physical custody may relocate off-island with the child. However, unless it can be shown that the relocation was contemplated at the time of divorce, a relocation will be considered a “material change in circumstances” and the other parent will be entitled to seek a change in custody, or an order barring removal of the child from the state. In most cases, it is better for the relocating parent to first seek permission from the other parent or the court, rather than face litigation later. In a relocation case, the court will focus on whether the relocation is in the best interest of the child, not merely whether it is convenient or desirable for the relocating parent.

At what age can the child decide?
At the age of 18, the child becomes an adult and can live wherever he or she wishes. Short of that, there is no specific age under Hawaii law at which a child can choose his custodial parent. Hawaii statutes do provide that the “preferences” of a child of “suitable age and discretion” should be given “due weight and deference” by the court. Implementing this statutory directive is highly problematic. Most Family Court judges and practitioners believe it is damaging to a child to be asked to choose between parents.

How does the judge decide custody disputes?
When parents agree, it is extremely unusual for a judge to refuse to approve their agreement. However, when parents cannot agree, and the court must decide, there is no magic formula for child custody. It is important to remember that the best interest of the child is the court’s paramount consideration, and fairness to each parent is entirely secondary. Courts often try to order arrangements that are least disruptive for the child and continue established patterns. Courts will try to protect the child from parental disputes and violence, and from parents who have drug, mental health, criminal, or other lifestyle issues. Educational opportunity, environment, and parents’ desires all play a role, as do the child’s age, health, and other factors. Frequently, the court will seek input from independent investigators, therapists, or others before making a decision. Custody litigation is extremely complex and challenging, and each case turns on its own unique facts.

Can the Hawaii court decide my child’s custody?
Interstate custody disputes are extremely complex. As a practical matter, the two judges from the two different states where custody proceedings are pending will confer and decide which state would be the best forum. Generally speaking, an initial custody determination should be made in the child’s “home state,” that is, the place where the child was last residing with a parent for a continuous six-month period at the time the action was filed. Once an initial custody determination has been made, the state that made it has continuing “exclusive jurisdiction” to modify that determination. However, a temporary “emergency” order can be made anywhere the child may be, if there is abuse or threats of abuse to a parent or the child.

How is child support determined?
Hawaii has a mandatory formula which the court will follow called the “Child Support Guidelines.” The variables in the formula are the number of children, the gross monthly incomes of the parents, and the medical insurance and day care costs for the children. This data is entered into a worksheet, and the required amount is then computed. Generally, the parties are not allowed to deviate from the amount shown on the worksheet, but there are rare exceptions.

Why must child support be paid through CSEA?
Because non-payment of child support was a chronic problem, Hawaii passed legislation many years ago requiring that it be automatically deducted from the obligor’s paycheck, just like taxes. The employer withholds the support amount from each paycheck, and sends it to the Child Support Enforcement Agency, which then cuts a check to the custodial parent. Although there are cases of delays and errors, for the most part this has been a very efficient approach. However, the parties can opt for direct payment from one parent to the other if both agree in writing, if the children have never been on welfare, and if the payor has never been delinquent.

How does custody affect child support?
Currently, the guidelines assume that the non-custodial parent will have up to 143 days per year of “visitation” with the child. If the time-sharing plan provides more than that, the non-custodial parent gets a pro rata reduction for each day beyond 143. If the time sharing plan provides equal time to both parents, and another set of computations are used which significantly reduces child support. Many people believe that neither parent pays child support to the other in a joint physical custody or equal time-sharing arrangement. This is not true, except when the gross incomes of the parents are close to equal.

How does alimony affect child support?
Child support is based on the gross incomes of the parents. If one parent pays alimony to the other, the alimony is deducted from his gross income and added to the gross income of the recipient. If the alimony recipient is also the custodial parent, receipt of alimony means less child support.

How long is the support obligation?
In Hawaii, the obligation to support children runs at least until age 18 or high school graduation, whichever occurs last. The Child Support Enforcement Agency will not enforce a support obligation beyond this point. However, the court can order support to continue beyond high school if the child is attending college on a full-time basis or is enrolled in an accredited vocational training program. In this situation, the child support amount will not automatically be computed using the guidelines formula. Instead, the court will consider the reasonable needs of the child, both parents’ ability to pay, and the college student’s ability to contribute to his own support through scholarships, loans, or part-time work.

What about educational expenses?
If the parties agree, or if the court orders it after a trial, one or both parents may be obligated to pay private educational expenses from kindergarten through high school. Private education expenses are paid in addition to child support. These expenses are usually defined as tuition, books, and mandatory fees. School lunches, transportation, school supplies, and clothing are normally considered to be covered by the payment of child support. Preschool programs prior to kindergarten are normally considered to be day care, which is covered by the payment of child support. When a child has previously been attending private school, the court will normally order that this continue. A divorce decree or paternity judgment does not have to mention private education expenses; it is an issue that the parties can defer to a later time.

How can I modify a support order?
The fastest way to get child support increased or decreased is to file a motion (or, if there is an agreement, a “stipulation”) in Family Court. Either party can ask for a modification whenever there has been a “material change in circumstances,” or not more than every three years without demonstrating a material change.  Most often, the change is a significant increase or decrease in one party’s income. In Hawaii, child support can only be modified retroactive to the date of the request, not to the date of the change in circumstances. Therefore, the party who will benefit from the change should seek it promptly. In cases where child support is paid through the Child Support Enforcement Agency, a party can request that the agency initiate a modification through its administrative process. While this process does not require an attorney, it can be slow. In many cases, it is well worth the attorney’s fees to hire a lawyer and seek modification through Family Court, instead of using the Child Support Enforcement Agency.

How can I enforce a support order?
A child support order, whether it was issued in Hawaii or elsewhere, can be enforced just about anywhere the obligor or his property can be found. Methods of enforcement include garnishment of wages and seizure of property. In extreme cases, the court can hold the obligor in contempt and order incarceration until the support is paid. Through the Child Support Enforcement Agency, other remedies against those who fail or refuse to pay include tax refund intercept, and revocation of licenses and passports.

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Guardianship

Sometimes a child’s parents cannot adequately provide for their child, and it becomes necessary to appoint a guardian to act in the parents’ stead. Hawaii Revised Statutes Section 560:5-201 et seq. outlines the procedures and legal standards the Family Court follows when determining whether to appoint a guardian on behalf of a child. A guardian can be appointed by a “will or other signed writing” that identifies the guardian and enumerates his/her powers upon the death or incapacity of the parent(s).

A guardian can also be assigned by judicial appointment upon the filing of a “petition for appointment of a guardian” by a person interested in the welfare of the child. A guardian will be appointed if: a) the parents consent to the appointment, b) the parents’ rights in the child have been terminated, or c) the parents are unwilling or unable to exercise their parental rights. Be advised that if the subject child has attained fourteen (14) years of age, he or she will have a say in who becomes his or her guardian.

Unlike adoptions, guardianships can be terminated upon petition by an interested person. For example, a common scenario is one where a guardian is appointed because the child’s parents are incapable of caring for their child, but in the ensuing years, one or both parents rehabilitate themselves (e.g., financially, medically, or psychologically) and then petition to terminate the guardianship and restore their parental rights.

Whether you are interested in petitioning the court to become a guardian or you are a parent contesting the appointment of a guardian, our strong advice is to hire an attorney with substantial experience litigating before the Family Court.

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Child Welfare Services

Child Welfare Services (CWS) – formerly known as Child Protective Services (CPS) – intervenes in the lives of children when the agency suspects that abuse or neglect is occurring and that neither parent can provide a safe and appropriate home for the subject child(ren). If CWS has become involved in your life, our strong advice is to seek legal advice and hire a qualified attorney.

If CWS is accusing you of abusing your child,  you have the right to contest the court’s right (and by extension CWS’s right) to exercise jurisdiction over you and your child. You are entitled to this hearing within fifteen (15) days of CWS filing its petition. We frequently advise our clients to contest the Court’s jurisdiction because CWS is frequently over zealous in accusing parents of abuse. CWS has the burden of proving that your child has been abused and that you cannot provide a safe and appropriate home.  When challenged in court, CWS may not be able to meet that burden, in which case you will be automatically reunited with your child(ren).

If the court decides to exercise jurisdiction over your family, then your child will be placed in foster custody and CWS will create a “service plan” for you and your family. Usually, the stated goal of the service plan is the reunification of the child with her/his parents. Again, you should continue to have competent legal counsel while working through the service plan to ensure that the service plan is appropriate and that you are given a fair opportunity to comply with the service plan and reunite with your child.

Frequently, CWS will file a Motion to Terminate Parental Rights even though you have complied with all the terms in the service plan. Generally, this is your last chance to reunite with your child and prove to the court that you can provide a safe and appropriate home for your child. If you fail to prove this, then your child will be adopted by a foster family. Once again, competent counsel can mean the difference between reunification and termination of parental rights.

Farrell & Associates attorneys have many years of experiencing litigating Child Welfare Services cases to successful results for our clients. Please contact us immediately if you find yourself embroiled in a CWS matter.

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Family Criminal

Sometimes family problems lead to related criminal matters requiring legal representation before the Hawaii Family Court on its criminal calendar. Many other law firms refer out their criminal cases, but Farrell & Associates attorneys have the skill and experience to represent you so that all of your family law matters can be handled by one law firm. The result is more efficient and effective representation.

The Domestic Violence Misdemeanor Calendar handles criminal charges for domestic violence and violations of Temporary Restraining Orders (TROs) or Orders for Protection. The maximum penalty for these offensives is a $2,000 fine or up to one (1) year imprisonment.

The leading charge for domestic violence in Hawaii is “Abuse of a Family or Household Member.” The charge encompasses abuse against: spouses, persons who have children in common, step-children, persons in a dating relationship, and persons related by blood. Two other criminal charges related to Family Law include Reckless Endangering of a Child and Custodial interference.

If you are arrested and charged for any violation of a domestic violence statute, you have the right to remain silent when questioned by law enforcement, and you have the right to have an attorney present during questioning by a law enforcement officer. If you are arrested for any of the foregoing offenses, call Farrell & Associates for a free consultation.

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Adoption

Adoptions in Hawaii generally occur for two (2) reasons: a) a parent voluntarily relinquishes his or her parental rights to someone in a better position to provide for the child; or b) a parent’s custodial rights are involuntarily terminated by the Family Court because he or she cannot provide an appropriate home environment for the child or has otherwise failed to show the concern for a child normally exhibited by a parent.

Pursuant to Hawaii Revised Statutes Section 578-2(c), your parental rights can be terminated and your child adopted by another adult, if: a) you have deserted your child without affording means of identification for a period of 90 days; b) you have voluntarily surrendered care and custody of your child to another for a period of two (2) years; c) you fail to communicate with your child for a period of one (1) year when he/she is in the custody of another and you have the ability to communicate with the child; d) you are not adjudicated or presumed to be the child’s father and you have not shown a “reasonable degree of interest, concern or responsibility” for the child; or e) you fail to respond to a written request for consent to adoption within 60 days. There are additional reasons why your parental rights can be terminated, but many people are surprised to learn that their child can be adopted for the statutory causes cited above.

Regardless whether the adoption is consensual or involuntary, Farrell & Associates strongly recommends hiring a qualified attorney to help you navigate the process. If the adoption is voluntary, it still requires the parties to properly file substantial amounts of paperwork with the Court; errors in filing the appropriate documents can substantially delay the adoption proceedings. If the adoption is involuntary, you will need an experienced litigator to assist you – whether you are the parent seeking to adopt the child or you are the parent seeking to prevent the adoption. Call a Farrell & Associates attorney today for a free consult regarding your potential adoption.

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Security Clearance

Hawaii’s substantial military presence requires many military personnel, Department of Defense employees, and civilian contractors to maintain security clearances to perform their job functions. If you are denied a security clearance in the first place, the denial usually means that you will not be hired for a job you may be otherwise highly qualified to perform. Even after security clearance has been granted, it can be revoked for any number of reasons, causing you to lose your present employment and the ability to work for another employer requiring security clearance.

Tom Farrell is one of the few attorneys in Hawaii who is qualified and highly experienced at representing military and civilian personnel before the Defense Industrial Security Clearance Office (DISCO) and the Defense Office of Hearings and Appeals (DOHA). In addition to being a litigator with over thirty (30) years of experience, Tom is a retired colonel, U.S. Army Reserve, and worked as a counterintelligence agent and military intelligence officer.

If your application for security clearance has been denied or if your present security clearance has been revoked, our strong recommendation is to immediately hire an experienced attorney to appeal the decision. Your career may depend on it.

FAQs

What is the difference between a denial and a revocation of a Security Clearance?
If you are applying for a Security Clearance the adverse action is called a denial. If you already have a Security Clearance, the action is called a revocation.

How do I know if my clearance is about to be denied or revoked?
Your security manager will give you a “Letter of Intent” (LOI). The letter will state the intended action and the reasons (in a very summary fashion) and explain your appeal rights.

How do I appeal?
Typically, the LOI contains a form which you fill out and deliver to your security manager in a very short period of time—as little as five days. If you fail to do so in time, your rights to appeal are forfeited. Always appeal. Even if you have a very weak case, you can always withdraw your appeal later, but if you don’t make a timely request, you can’t turn back the clock.

How does the appeal process work?
This is a simplified explanation, but generally there are three steps. First, the individual submits a written appeal to the original adjudicator, either the service central clearance facility or the Defense Industrial Security Clearance Office (DISCO). If that appeal is not successful, then the individual may request a further appeal to the Defense Office of Hearings and Appeals (DOHA). Although a DOHA appeal may be had on strictly a paper review, the individual is entitled to request a personal appearance before a DOHA Administrative Judge. This is always the better approach. The DOHA Administrative Judge makes a recommended decision, but the final decision is made by the Personnel Security Appeals Board (PSAB). The individual has no input to the PSAB, and its decisions are final and, except in very rare instances, not reviewable by a court of law.

What do the adjudicators or the DOHA Judge consider?
First and foremost, they consider factual evidence either refuting or mitigating the particular security concerns identified in the LOI. Second, they consider the “whole person” which generally entails a demonstration of the individual’s importance to national security, past contributions thereto, and anticipated future contributions. Ultimately, the question is whether the granting of a clearance is clearly consistent with the interests of national security.

How does one respond to specific security concerns?
It is important to review the published adjudication guidelines and address both aggravating and mitigating factors. Whenever possible, documentary evidence is far more helpful that mere assertions. For example, where an individual is deemed a security risk due to bankruptcy, a demonstration by way of current financial statements, bank statements, proof of ownership and value of assets, current debt statements, proof of income and expenses can all paint the picture that the individual is now financially stable. Mere protestations of loyalty are rarely successful.

How can I prepare?
When we accept a national security client, we assess what witnesses and documents might best make the case. Active client participation is essential. We frequently ask clients to obtain character references, and to provide performance evaluations and other supporting documentation. We also ask clients to identify potential witnesses and solicit their cooperation.

What happens at a personal appearance?
The personal appearance is a hearing before a DOHA Administrative Judge. These judges are lawyers and frequently retired JAG officers who are very knowledgeable about the adjudicative guidelines and who bring many years of military experience to the case. The typical hearing lasts for one to three hours.  The government is typically represented by a DOHA attorney, who acts as a prosecutor.  There are no rules of evidence, except relevance. In Hawaii, hearings are typically held by video teleconference at Pacific Fleet headquarters in Makalapa, Fort Shafter, or the Federal Building. The Administrative Judge is located in Burbank, or in some cases, in Washington, DC. Generally, witnesses should appear to testify in Hawaii, but we have had cases where some witnesses testified in Hawaii and some in Washington, while the Judge conducted the proceeding from Burbank.

Should I do this myself?
In most cases, loss of a Security Clearance means the eventual loss of one’s job or separation from military service. For military personnel, the loss of a clearance also means that they are highly unlikely to find post-separation employment in defense related work. Tom Farrell is a trained counterintelligence agent, and a military intelligence officer with over two decades of experience. He has also served as security manager in almost every unit where he was assigned. Tom has seen too many cases of naïve do-it-yourselfers who lost their careers.

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