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.

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.

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.