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 the 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 maybe, 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 daycare 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 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 daycare, 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 a 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 the 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.