A.A. v. B.B.. ( 2016 )

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Electronically Filed
Supreme Court
SCAP-15-0000022
03-NOV-2016
10:35 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
A.A.,
Petitioner/Petitioner-Appellant,
vs.
B.B.,
Respondent/Respondent-Appellee.
SCAP-15-0000022
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(CAAP-15-0000022; FC-M NO. 14-1-0034K)
NOVEMBER 3, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
Petitioner A.A. and Respondent B.B. decided together
to bring a child into their home. Although only B.B. legally
adopted the child, A.A. and B.B. co-parented the child and
shared physical custody of her, even after their separation as a
couple. A.A. brought a petition for joint custody in the Family
Court of the Third Circuit (family court) based solely on the de
facto custody provision of Hawaiʻi Revised Statutes (HRS) § 571-
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46(a)(2), which was denied. A.A. appealed the family court’s
denial of his petition and applied for a transfer to this court,
which we granted.
The main issue on appeal concerns the interpretation
and application of Hawaii’s statutory de facto custody provision
and whether it infringes on B.B.’s parental rights. Because we
conclude that the family court misinterpreted and misapplied the
de facto custody provision, we vacate the family court’s
decision and remand the case for further proceedings.
I. BACKGROUND
A. Factual Background
A.A. and B.B. entered into a committed relationship in
March 2009 and lived together continuously until October 2013.
Child was born in September 2011, and B.B. is the biological
grandfather and legal adoptive father of Child.
The decision to adopt and raise Child was a joint
decision made by B.B. and A.A. Together they determined a first
and last name for the baby, giving her each of their last names
separated by a hyphen. A.A., B.B., Child, and B.B.’s teenage
son lived together as a family unit from October 2011 until
October 2013. During this time, A.A. and B.B. jointly shared
all parental care, duties, and responsibilities for Child. From
the time she could talk, Child referred to B.B. as “Papa” and
A.A. as “Daddy.” A.A. and B.B. discussed and intended that A.A.
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would adopt Child, and they retained an attorney to accomplish
the adoption. However, A.A.’s planned adoption of Child never
occurred, and although A.A. and B.B. discussed entering into a
civil union or marriage, that also never occurred.
After their separation in October 2013, B.B. and A.A.
entered into a written 50/50 co-parenting agreement for Child.
Under the co-parenting agreement, A.A. and B.B. each had actual
care and custody of Child from Sunday to Wednesday and then
Sunday to Thursday in alternating weeks. During the period of
the co-parenting agreement, A.A. and B.B. communicated through
email to discuss Child. B.B. indicated to A.A. by email that he
wanted A.A. to have custody of Child should anything ever happen
to him. In April 2014, B.B. sent A.A. a letter declaring that
the written 50/50 co-parenting agreement was revoked on the
ground that it was B.B.’s “parental right” to do so.
B. A.A.’s Petition for Joint Custody
A.A. filed a petition for joint custody in the family
court in May 2014, seeking joint legal and joint 50/50 actual
physical custody of Child pursuant to HRS § 571-46(a)(2).1
1
HRS § 571-46(a)(2) (Supp. 2013) provides,
(a) . . . . In awarding the custody, the court shall be
guided by the following standards, considerations, and
procedures:
. . . .
(continued . . .)
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A.A.’s petition alleged that he had de facto joint custody of
Child “in a stable and wholesome home” and that he was “a fit
and proper person to have care, custody, and control of the
minor child.”
The family court held an initial hearing on A.A.’s
petition for joint custody in June 2014.2 At the June hearing,
the court noted that there were no disputed facts in the case
and that the issue was whether B.B. has the absolute right to
dictate who can have custody of the minor child.
During the evidentiary hearing held in October, B.B.
offered Dr. Jennifer L. De Costa as “an expert in the field of
family behaviors and in the relationship of children with their
families.”3 A.A. objected to Dr. De Costa’s qualification as an
expert, asserting that she should be qualified as a marriage and
family counselor; the family court concluded that Dr. De Costa
(2) Custody may be awarded to persons other than the
father or mother whenever the award serves the best
interest of the child. Any person who has had de facto
custody of the child in a stable and wholesome home and is
a fit and proper person shall be entitled prima facie to
an award of custody . . . .
2
The Honorable Melvin H. Fujino presided.
3
Dr. De Costa testified that she was a behavior health specialist
at Innovative Hawaiʻi Community Hospital and possessed a bachelor’s degree in
psychology from the University of Hawaiʻi, a master’s degree in science from
Western Washington University, a master’s degree in marriage and family
therapy from University of Oregon, and a doctorate degree from Oregon State
University in family counseling and gerontology.
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was an expert in the field of family behavior and relationships
as it relates to children and families.
On direct examination, Dr. De Costa testified
extensively about B.B.’s teenage son. Dr. De Costa was
permitted to testify over A.A.’s objection that she saw a
correlation between depressive symptoms exhibited by B.B.’s son
and interactions with A.A.; she discussed this correlation in
reference to B.B.’s son’s performance on tests used to measure
depression and anxiety. Dr. De Costa also testified regarding
her counseling and treatment of Child. B.B.’s counsel requested
Dr. De Costa to assume that A.A. had an anger management problem
and asked her to offer an opinion as to whether she would have
any concerns of Child having a custodial relationship with A.A.
A.A. objected to the testimony on the basis that the
hypothetical question assumed facts not in evidence.4 Dr. De
Costa was permitted to opine that she would have concerns about
Child having a relationship with A.A. Dr. De Costa was also
asked whether Child would be harmed from termination of the
relationship with A.A.; she testified, “This is a hard one. But
I don’t--right now, where she’s at, I don’t think so.”
4
A.A. later testified that he had an anger management problem that
interfered with his relationship with B.B..
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A.A. offered Dr. Jamuna Wyss, a clinical psychologist,
as an expert on parent-child psychological relationships and
parenting styles. Dr. Wyss indicated that A.A. and B.B.
attended couples therapy with him beginning in October 2013 and
that A.A. continued to be his client in individual therapy. Dr.
Wyss gave a favorable opinion regarding A.A. as a parent and the
home he provided for Child. Dr. Wyss also testified regarding
the consequences when parent-child relationships are terminated,
opining that there was a likelihood that termination of the
relationship between A.A. and Child would result in “immediate-
term and long-term damaging psychological consequences” to
Child.
A.A.’s counsel also attempted to enter into evidence a
clinical note of Dr. Wyss’s related to sex-abuse allegations
involving A.A. The court did not accept the note into evidence
and did not allow Dr. Wyss to testify regarding the allegation
because it was outside the scope of Dr. Wyss’s report. However,
Dr. Wyss was permitted to testify that he was aware of sex-abuse
allegations involving A.A. and that he did not believe that A.A.
posed a threat of abuse to Child, “be it sexual, physical, or
emotional abuse or neglect.”
On December 11, 2014, the family court entered its
“Findings of Fact, Conclusions of Law; Order/Final Judgment”
denying A.A.’s petition for joint custody. The family court
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characterized the main issue as follows: “[I]n a State where the
parties can get married or can become a civil union partnership,
if they choose not to, . . . should [A.A.] be afforded standing
to claim what is known as a ‘psychological father.’” The court
concluded that A.A. did not have standing as Child’s
“psychological father” because the parties were not married.
Although the family court determined that HRS § 571-46 applied,
which allows a custody award to a person who demonstrates de
facto custody of a child, the court concluded that A.A. failed
to demonstrate “by strict scrutiny a compelling state interest
as to why this ‘de facto’ section should apply to him when in
fact the parties were not married, and when the options of civil
union or marriage were available.”5
II. DISCUSSION
A.A.’s petition requested joint custody of Child
pursuant to HRS § 571-46(a)(2), asserting that A.A. “is a person
who has had de facto joint custody of the child in a stable and
wholesome home” and that joint custody was in the best interests
of Child.6 Although the family court determined that HRS § 571-
5
The family court also found, “In this case the Court will find
compelling the testimony of the child’s therapist, Jennifer De Costa, in the
sense that she testified that in her opinion that the child would not be
harmed and in fact that she did see some regression once the Court allowed
supervised visitation between [Child and A.A.].”
6
A.A. sought custody of Child based solely on the de facto
provision of HRS § 571-46(a)(2). Additionally, in his opening brief, A.A.
(continued . . .)
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46(a)(2) was applicable, the court declined to apply this
statutory provision, reasoning that A.A. failed to demonstrate
“by strict scrutiny a compelling state interest” to support the
application of the statute under the circumstances of this case.
Thus, the primary issues on appeal are whether the family court
properly interpreted and applied HRS § 571-46(a)(2) and whether
its application in this case would infringe on B.B.’s
constitutionally protected parental rights. A.A. also
challenges several evidentiary rulings regarding the expert
testimony presented at the hearing.
A. Interpretation and Application of HRS § 571-46(a)(2)
In cases involving child custody, it is well
established that the guiding consideration is the best interests
of the child. E.g., Doe v. Doe, 98 Hawaiʻi 144, 155, 44 P.3d
1085, 1096 (2002); Fujikane v. Fujikane, 61 Haw. 352, 354, 604
cites only to HRS § 571-46(a)(2)--and not HRS § 571-46(a)(1)--as a basis for
his claim for custody of Child. Although A.A. references the “parent by
estoppel” doctrine of other jurisdictions in his opening brief, he does so in
support of his argument that the trial court erred in its determination that
A.A. was required to show by strict scrutiny a compelling state interest as
to why HRS § 571-46(a)(2) should apply to him. Thus, it appears that to the
extent that A.A. argues that he satisfies the doctrine adopted by the
Wisconsin Supreme Court, it is to support his argument that the application
of this statute is constitutional.
Accordingly, we do not consider whether A.A. is a “parent”
eligible to seek custody pursuant to HRS § 571-46(a)(1) or on any other
basis. It is noted that at least one jurisdiction has expanded the
definition of “parent” in a similar statute to include a partner of a
domestic partnership that agrees to conceive a child and to raise the child
together. See Brooke S.B. v. Elizabeth A. C.C., No. 91, 2016 WL 4507780(N.Y. Aug. 30, 2016).
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P.2d 43, 45 (1979) (per curiam). The trial court possesses
broad discretion in making custody decisions and in its
determination of what is in the best interests of the child.
Fujikane, 61 Haw. at 354, 604 P.2d at 45 (“It is clear that the
court below possesses wide discretion in making custody
decisions . . . .”). HRS § 571-46(a) provides standards that
apply to a court’s custody decision in proceedings involving a
dispute as to the custody of a minor child:
In awarding the custody, the court shall be guided by the
following standards, considerations, and procedures:
(1) Custody should be awarded to either parent or to both
parents according to the best interests of the child, and
the court also may consider frequent, continuing, and
meaningful contact of each parent with the child unless
the court finds that a parent is unable to act in the best
interest of the child;
(2) Custody may be awarded to persons other than the
father or mother whenever the award serves the best
interest of the child. Any person who has had de facto
custody of the child in a stable and wholesome home and is
a fit and proper person shall be entitled prima facie to
an award of custody;
(3) If a child is of sufficient age and capacity to
reason, so as to form an intelligent preference, the
child’s wishes as to custody shall be considered and be
given due weight by the court . . . .
HRS § 571-46(a)(1)-(3) (Supp. 2013).
Subsection (a)(1) of this statute concerns the
awarding of custody to the child’s parents and provides that
custody “should be awarded” to either or both parents according
to the best interests of the child. Additionally, the court may
consider continuing and meaningful contact of each parent with
the child unless the parent is unable to act in the best
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interests of the child.7 In his petition for custody, A.A. does
not seek custody based on alleged parental status under
subsection (a)(1).
Subsection (a)(2), upon which A.A. relies, provides
that custody “may be awarded to persons other than the father or
mother whenever the award serves the best interest of the
child.” Subsection (a)(2) also creates a presumption in favor
of a person under certain circumstances: “Any person who has had
de facto custody of the child in a stable and wholesome home and
is a fit and proper person shall be entitled prima facie to an
award of custody.” Although “de facto custody” is not defined,
we interpret it to mean sole or shared physical custody in
combination with an assumption of incidents of legal custody
enumerated in HRS § 571-2, which include “the duty to protect,
train, and discipline the minor and to provide the minor with
food, shelter, education, and ordinary medical care.” In other
words, de facto custody is consistent with a parental role.
Accordingly, a person may establish a prima facie case
of de facto custody, by showing that the person (1) is a fit and
proper person (2) who has had de facto custody of the child (3)
7
“‘Meaningful contact’ means parent and child interactions,
activities, and experiences, performed together, which nurture the parent-
child attachment and relationship, while contributing to the child’s
development in a positive and effective manner.” HRS § 571-2 (2006 & Supp.
2011).
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in a stable and wholesome home. HRS § 571-46(a)(2). If a
person is able to establish these three elements, then the
person has adduced prima facie evidence that awarding custody to
that person is in the best interests of the child. Nonetheless,
the family court ultimately has the discretion to determine the
custody award that would serve the best interests of the child
based on the entirety of the evidence presented.
Although the family court determined that HRS § 571-
46(a)(2) applies to this case, the court did not determine
whether or not A.A. established a prima facie case to an award
of custody based on de facto custody.8 However, the family court
did not make any particular findings that would contradict
A.A.’s claim of de facto custody pursuant to subsection (a)(2),
and A.A. provided evidence to support all three elements of
subsection (a)(2) in addition to evidence from Dr. Wyss that it
would be beneficial to Child to have contact with him. On the
8
Although we express no opinion as to whether A.A. established
prima facie that he had de facto custody of child pursuant to HRS § 571-
46(a)(2), it is noted that the record was sufficient to support a finding
that A.A. had de facto custody of Child because B.B. shared all parental
care, duties, and responsibilities with respect to Child with A.A. from
October 2011 to October 2013 and then continued to have actual joint custody
of Child until April 2014, pursuant to the written co-parenting agreement.
The family court’s findings would also support a determination that A.A.
provided a stable and loving home for Child, based on, inter alia, the
court’s findings regarding the period of joint custody and Dr. Wyss’s
testimony that termination of the attachment bond between A.A. and Child
would be psychologically harmful to Child. The findings that would support
the first two elements may also support a finding that A.A. was a fit and
proper person to have custody of Child given that he was involved in co-
parenting Child for the majority of Child’s life.
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other hand, B.B. produced evidence, including through Dr. De
Costa’s testimony, that could be construed to support a finding
that A.A. is not a fit and proper person and that it would not
be in Child’s best interests for custody to be jointly awarded
to A.A.
In declining to apply subsection (a)(2), the family
court reasoned that A.A. did not adequately demonstrate by
strict scrutiny a compelling state interest that the statute was
constitutional as applied to him.9 The burden, however, is not
on A.A. to demonstrate the constitutionality of HRS § 571-
46(a)(2). Indeed, “every enactment of the legislature is
presumptively constitutional,” and the “party challenging the
statute has the burden of showing unconstitutionality.” State
v. Mueller, 66 Haw. 616, 627, 671 P.2d 1351, 1358 (1983)
(quoting Schwab v. Ariyoshi, 58 Haw. 25, 31, 564 P.2d 135, 139
(1977)). Thus, in this case, if joint custody were awarded to
A.A., then B.B. would be considered the challenger to HRS § 571-
46(a)(2), and B.B. would have the burden of establishing the
statute’s infringement on his constitutionally protected
parental rights. Id.
9
We review the family court’s conclusions of law, including
constitutional questions of law, de novo under the right/wrong standard. See
Doe v. Doe, 116 Hawaiʻi 323, 326, 172 P.3d 1067, 1070 (2007); In re Doe, 95
Hawaiʻi 183, 190, 20 P.3d 616, 623 (2001).
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The family court’s analysis was directly contrary to
this widely accepted presumption that statutes are valid.
Accordingly, the family court erred in requiring that A.A.
establish the constitutionality of HRS § 571-46(a)(2) before its
application. The family court should have made findings and
conclusions with regard to whether A.A. satisfied the de facto
custody test of subsection (a)(2) and whether granting of joint
custody was in the best interests of Child.
B.B. argues that HRS § 571-46 prefers that custody be
awarded to the parents of a child and that a non-parent may only
be considered for custody if the court finds that the parent is
unable to act in the best interests of the child. We do not
agree with this rigid interpretation of HRS § 571-46, which is
contrary to the well-settled principle that “the paramount
consideration” in child custody cases is the best interests of
the child. Doe, 98 Hawaiʻi at 155, 44 P.3d 1085 at 1096. While
a preference inheres in HRS § 571-46(a)(1) that custody “should”
be awarded to the parents, nevertheless custody may be awarded
to persons other than a parent and the court “shall” consider
the child’s wishes if the child is of sufficient age and
capacity to reason. HRS § 571-46(a)(1)-(3). Implicit in B.B.’s
proffered interpretation is the concept that custody will be
given either to a parent or nonparent. However, in reality,
there may be instances where the child’s best interests are
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served by joint custody where a fit parent and nonparent share
responsibilities for the child.
The court must always determine what would serve the
best interests of the child. HRS § 571-46 provides guidance to
the courts by way of standards, considerations, and procedures,
and ultimately, the court has the flexibility to fashion a
custody award that is in the best interests of the child. In
this case, the family court erred in concluding that A.A. was
required to establish, as a threshold matter, that the
application of HRS § 571-46(a)(2) to his claim for custody would
be constitutional. Because the court did not make a
determination as to whether A.A. established a prima facie case
of de facto custody under HRS § 571-46(a)(2) and did not make
findings of fact and conclusions on this ultimate issue, the
record is insufficient for appellate review of the custody
decision. Accordingly, the case must be remanded to the family
court for further proceedings.
B. B.B.’s Constitutionally Protected Parental Rights
In his answering brief, B.B. argues that HRS § 571-
46(a)(2) “is being utilized by [A.A.] to attempt to interfere
with [B.B.’s] right to raise his child and protect his child
from the conduct, belief, opinions, language, personality, and
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demeanor of [A.A.].”10 In light of the remand of this case to
the family court, we address B.B.’s constitutional challenge to
HRS § 571-46(a)(2).11
B.B.’s constitutional argument raises questions
regarding whether HRS § 571-46(a)(2) unreasonably interferes
with B.B.’s decision as a parent to no longer share custody with
A.A.. Accordingly, we consider whether Hawaii’s de facto
custody provision--which uses a “best interests of the child
standard”--unconstitutionally infringes on a person’s parental
rights where the nonparent has had actual custody of the child
in a stable and wholesome home, is a fit and proper person, the
parent has voluntarily incorporated the nonparent into the
family unit sharing parental responsibilities and duties, and
the parties subsequently shared custody pursuant to a written
co-parenting agreement.
The Fourteenth Amendment to the United States
Constitution and article I, section 5 of the Hawaiʻi Constitution
provide that no person shall be deprived of “life, liberty, or
property without due process of law.” U.S. Const. amend. XIV, §
10
The record does not indicate whether B.B. notified the Attorney
General of the State of Hawaiʻi of his challenge to the constitutionality of
HRS § 571-46(a)(2) pursuant to his duty under Hawaiʻi Rules of Appellate
Procedure Rule 44.
11
For purposes of considering the constitutional issue raised by
B.B., we assume that A.A. satisfies the de facto custody provision. However,
as mentioned, we express no opinion as to whether A.A. satisfied the three
elements necessary to raise the de facto presumption.
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1; Haw. Const. art. I, § 5. Under the Hawaiʻi Constitution, we
conduct a two-step inquiry in analyzing procedural due process
claims. We first consider whether a liberty or property
interest has been interfered with by the State, and second, we
determine what specific procedures are required to satisfy due
process. State v. Guidry, 105 Hawaiʻi 222, 227, 96 P.3d 242, 247
(2004). Similarly, when the Due Process Clause “is invoked in a
novel context,” the Supreme Court of the United States “begin[s]
the inquiry with a determination of the precise nature of the
private interest that is threatened by the State.” Lehr v.
Robertson, 463 U.S. 248, 256 (1983); see Washington v.
Glucksberg, 521 U.S. 702, 720 (1997) (noting that the court has
required “‘a careful description’ of the asserted fundamental
liberty interest” (quoting Reno v. Flores, 507 U.S. 292, 301
(1993))). It is only after that interest has been identified
that the court can “properly evaluate the adequacy of the
State’s process.” Lehr, 463 U.S. at 256.
Whether a parent has a constitutionally protected
liberty interest in deciding that a person who has “de facto
custody” of the child should no longer have custody is a matter
of first impression in this jurisdiction. It has long been
recognized that the due process clause protects certain liberty
interests that parents have in maintaining relationships with
their children and in directing their upbringing. See, e.g.,
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Troxel v. Granville, 530 U.S. 57, 65 (2000). Independent of the
United States Constitution, parents have a substantive liberty
interest in the care, custody, and control of their children
protected by the due process clause of article I, section 5 of
the Hawaiʻi Constitution and the right to privacy of article I,
section 6 of the Hawaiʻi Constitution. See Doe v. Doe, 116
Hawaiʻi 323, 334, 172 P.3d 1067, 1078 (2007) (“Parents’ right to
raise their children is protected under article I, section 6 of
the Hawaiʻi Constitution . . . .”); In re Doe, 99 Hawaiʻi 522,
533, 57 P.3d 447, 458 (2002) (“We affirm, independent of the
federal constitution, that parents have a substantive liberty
interest in the care, custody, and control of their children
protected by the due process clause of article 1, section 5 of
the Hawaiʻi Constitution.”).
Although due process jurisprudence recognizes a
substantive liberty interest in directing the upbringing of
one’s child without state interference, the right is largely
undefined. In Troxel v. Granville, the United States Supreme
Court reviewed the Washington Supreme Court’s determination that
a Washington visitation statute violated the United States
Constitution. A majority of the Court agreed to affirm the
Washington Supreme Court’s decision. The plurality opinion,
written by Justice Sandra Day O’Connor, found that the
Washington visitation statute was “breathtakingly broad” because
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its language effectively permitted “any third party seeking
visitation to subject any decision by a parent concerning
visitation of the parent’s children to state-court review.” 530
U.S. at 67-68. The plurality opinion did not define the scope
of the parental right at issue in that case, and one common
thread that runs through nearly all of the six opinions written
in the Troxel case is that the parental right with respect to
visitation decisions remained undefined. See id. at 73 (“We do
not, and need not, define today the precise scope of the
parental due process right in the visitation context.”); id. at
78 (Souter, J., concurring) (“Our cases, it is true, have not
set out exact metes and bounds to the protected interest of a
parent in the relationship with his child . . . .”); id. at 88(Stevens, J., dissenting) (“While this Court has not yet had
occasion to elucidate the nature of a child’s liberty interests
in preserving established familial or family-like bonds, it
seems to me extremely likely that, to the extent parents and
families have fundamental liberty interests in preserving such
intimate relationships, so, too, do children have these
interests, and so, too, must their interests be balanced in the
equation.” (citation omitted)); id. at 91-93 (Scalia, J.,
dissenting) (arguing that the constitution does not recognize
the right of a parent to direct the upbringing of their children
and indicating that he would not extend the theory of the cases
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recognizing any such right “to this new context”); id. at at
100-01 (Kennedy, J., dissenting) (“In short, a fit parent’s
right vis-à-vis a complete stranger is one thing; another parent
or a de facto parent may be another. The protection the
Constitution requires, then, must be elaborated with care, using
discipline and instruction of the case law system.”). But see
id. at (Thomas, J., dissenting) (arguing that “parents have a
fundamental constitutional right to rear their children,
including the right to determine who shall educate and socialize
them”). Similarly, the scope of the parental right in the
context of custody proceedings between a parent and a nonparent
who has “de facto custody” of the child has not been defined by
the Supreme Court.
The Supreme Court’s cases regarding the interests of
parents in the care, custody, and control of their children may
be grouped into two categories: (1) cases involving a natural
parent’s right to parent a child and maintain the parent-child
relationship12 and (2) cases involving state interference with a
12
See Santosky v. Kramer, 455 U.S. 745, 768 (1982) (holding that a
state’s use of a “fair preponderance of the evidence” standard at a parental
rights termination proceeding violated the Due Process Clause); Quilloin v.
Walcott, 434 U.S. 246, 255 (1978) (holding that the natural father’s
substantive due process rights were not violated by application of the “best
interests of the child” standard where natural father had not previously
sought actual or legal custody of child); Stanley v. Illinois, 405 U.S. 645,
(1972) (holding that natural father “was entitled to a hearing on his fitness
as a parent before his children were taken from him and that, by denying him
a hearing and extending it to all other parents whose custody of their
(continued . . .)
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parent’s decision regarding the child.13 This case does not call
into question the potential termination of B.B.’s parental
rights, but rather, it involves B.B.’s right to determine who
has custody and access to Child. Because the Court did not
define the parental right in Troxel, there are no Supreme Court
opinions discussing circumstances analogous to this case. See
supra notes 12-13.14
children is challenged, the State denied [father] the equal protection of the
laws guaranteed by the Fourteenth Amendment”).
13
See Troxel, 530 U.S. at 67-68 (holding as facially
unconstitutional a statute allowing any third party seeking visitation to
subject any decision by a parent concerning visitation of the parent’s
children to state-court review); Wisconsin v. Yoder, 406 U.S. 205, 234 (1972)
(holding that the First and Fourteenth Amendments prevented the State of
Wisconsin from compelling Amish parents to “cause their children to attend
formal high school at age 16”); Prince v. Massachusetts, 321 U.S. 158, 443-44
(1944) (holding that a state statute prohibiting children from distributing
magazines on the street did not violate child’s First Amendment rights or
child’s custodian’s First and Fourteenth Amendment rights to give child
religious training); Pierce v. Soc’y of the Sisters, 268 U.S. 510, 535 (1925)
(holding that a state statute requiring children to attend public school
“unreasonably interfere[d] with the liberty of parents and guardians to
direct the upbringing and education of children under their control”); see
also Parham v. J. R., 442 U.S. 584, 603 (1979) (holding that a state statute,
which allowed voluntary admission of minor children to mental hospitals by
parents or guardians, did not per se violate the children’s substantive due
process rights).
14
The Massachusetts Supreme Court observed that the following
principles clearly emerged from the Troxel plurality decision:
(i) reaffirmation that a parent’s liberty interest in child
rearing is indeed fundamental, and is certainly fundamental
in this context;
(ii) “any third party” should not be permitted to seek
visitation;
(iii) in determining whether grandparent visitation should
occur, there exists a “presumption that a fit parent will
act in the best interest of his or her child,” and the
decision of a fit parent concerning grandparent visitation
is entitled to considerable deference; and
(continued . . .)
20
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In Doe, this court considered the constitutionality of
a statute allowing for any grandparent residing in the same
state of their grandchild to petition for visitation and
allowing the court to grant the petition so long as it was in
the best interests of the child.15 116 Hawaiʻi at 325, 172 P.3d
at 1069. Applying strict scrutiny, the court concluded that
“proper recognition of parental autonomy in child-rearing
decisions requires that the party petitioning for visitation
demonstrate that the child will suffer significant harm in the
absence of visitation before the family court may consider what
degree of visitation is in the child’s best interests.” Id. at
335-36, 172 P.3d at 1079-80. Accordingly, the court held that
the statute was facially unconstitutional because it did not
include the “harm to the child” standard required by the right
to privacy under the Hawaiʻi Constitution.16 Id. at 336; 172 P.3d
(iv) in determining whether grandparent visitation should
occur, the potential impact to the parent-child
relationship should be considered.
Blixt v. Blixt, 774 N.E.2d 1052, 1058-59 (Mass. 2002) (citations omitted)
(quoting Troxel, 530 U.S. at 67, 69).
15
The court also suggested that the statute was not facially
unconstitutional under the Due Process Clause of the Fourteenth Amendment.
See Doe, 116 Hawaiʻi at 333, 172 P.3d at 1077 (concluding that the grandparent
visitation statute “comport[ed] with the limited requirements expressed in
Troxel”).
16
Doe ruled that the statute was unconstitutional under article I,
section 6 of the Hawaiʻi Constitution only. See 116 Hawaiʻi at 335-36, 172
P.3d at 1079-80.
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at 1080. Thus, a parent’s fundamental right to direct the
upbringing of his or her child was implicated “where a nonparent
third party petitione[d] for visitation,” and the State could
not interfere with the parent’s decision absent a finding that
the parent’s decision to deny access to the child would result
in harm to the child. Id.Subsequently, the ICA considered whether the
application of the doctrine of equitable estoppel in a custody
proceeding infringed on a mother’s parental rights. See Inoue
v. Inoue, 118 Hawaiʻi 86, 101, 185 P.3d 834, 849 (App.), cert.
denied, 118 Hawaiʻi 194, 186 P.3d 629 (2008). In Inoue, the
family court equitably estopped the biological mother of a child
from denying that her husband was the father of her child for
the purposes of determining custody. Id. at 88, 185 P.3d at
836. The mother and her husband in Inoue met when she was
pregnant with the child. Id. at 88-89, 185 P.3d at 836-37. The
mother did not identify any father on the child’s original birth
certificate, but at some point after the birth of the child, the
child’s birth certificate was changed to reflect the husband as
the child’s father. Id. at 89, 185 P.3d at 837. The mother and
husband were subsequently married, had two additional children,
and lived together as a family until their separation seven
years later. Id. The family court in Inoue awarded husband
sole legal and physical custody of all three children, while
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granting mother visitation rights. Id. at 91, 185 P.3d at 839.
The mother appealed the family court’s decision to the ICA
arguing that the family court could not award husband custody of
the oldest child because he was not the child’s legal father and
she was not unfit. Id. at 92, 185 P.3d at 840.
The ICA concluded that the family court did not err in
holding that the husband was the legal father of the child under
Hawaii’s presumption of paternity statute and that the mother
was estopped from challenging her husband’s parentage of the
child. Id. at 94, 185 P.3d at 842. The ICA also considered
whether the application of the doctrine of equitable estoppel
infringed on the mother’s parental rights under a plain error
standard of review. Id. at 99-101, 185 P.3d at 847-49. The ICA
concluded that the application of the doctrine of equitable
estoppel did not infringe on the mother’s liberty interests
because she voluntarily rendered her parental rights with
respect to the child “less exclusive and less exclusory” with
regard to her husband. Id. at 101, 185 P.3d at 849 (quoting
Rubano v. DiCenzo, 759 A.2d 959, 976 (R.I. 2000)). The ICA
reasoned,
By marrying Egan and then adding his name to Child One’s
birth certificate, Gina created the circumstances under
which Egan became Child One’s “legal father.” By
representing to him that he had adopted Child One when he
allowed his name to be added to the certificate, Gina led
Egan to take no action to further investigate or establish
his status as Child One’s father. Finally, Gina allowed
Egan to assume the role of Child One’s father and to become
Child One’s psychological parent.
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Id. at 100-01, 185 P.3d at 848-49 (footnote omitted).
Inoue relied on the Rhode Island Supreme Court’s
decision in Rubano, which concerned two women who agreed to
become the parents of a child. 759 A.2d at 961. They arranged
for one of them to conceive via artificial insemination, and
they raised the child together for four years while living
together as a family in Massachusetts. Id. They gave the child
both of their last names separated by a hyphen on the child’s
birth certificate and sent out printed birth announcements
identifying both of them as the child’s parents, although the
parental status was never legally settled by adoption. Id.When the couple separated, the biological mother took the child
with her to Rhode Island, and, initially, the biological mother
agreed to a visitation schedule for her former partner to see
the child. Id. at 961. Later, when the biological mother was
resistant to the visitation arrangements, the former partner
initiated legal proceedings seeking to establish her de facto
parental status and obtain court-ordered visitation. Id. at
961-62. The parties negotiated a compromise that was embodied
in a consent order, specifying that the former partner would
have permanent visitation with the child on a periodic basis in
exchange for waiving any claim to parent the child. Id. at 962.
In later proceedings, the biological mother asserted that the
court lacked jurisdiction to enter the consent order. Id.24
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The Supreme Court of Rhode Island considered whether
the biological mother had a protected liberty interest under the
Due Process Clause of the Fourteenth Amendment to terminate the
relationship between her former partner and child. The Rhode
Island court concluded that the biological mother rendered her
own parental rights with respect to her child “less exclusive
and less exclusory” than they otherwise would have been had she
not “by word and deed” allowed her former partner to establish a
parental bond with the child and also agreed to allow
visitation. Id. at 976. The court reasoned that “the mere fact
of biological parenthood, even when coupled with the biological
parent’s ongoing care and nurture of the child and that parent’s
fundamental right . . . , does not always endow the biological
parent with the absolute right to prevent all third parties from
ever acquiring any parental rights vis-à-vis the child.” Id.The Inoue and Rubano decisions are consistent with the
United States Supreme Court’s cases defining the parental
liberty interest. Constitutionally protected parental rights
are not based solely on legal or biological ties, and the
Supreme Court has recognized “that the rights of the parents are
a counterpart of the responsibilities they have assumed.” Lehr,
463 U.S. at 257. Stated another way, “A parent’s rights with
respect to her child have thus never been regarded as absolute,
but rather are limited by the existence of an actual, developed
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relationship with a child, and are tied to the presence or
absence of some embodiment of family.” Troxel, 530 U.S. at 88(Stevens, J., dissenting). The Supreme Court has recognized
that “[t]he importance of the familial relationship, to the
individuals involved and to the society, stems from the
emotional attachments that derive from the intimacy of daily
association, and from the role it plays in ‘promot[ing] a way of
life’ through the instruction of children as well as from the
fact of blood relationship.’” Lehr, 463 U.S. at 261 (second
alteration in original) (quoting Smith v. Org. of Foster
Families for Equality & Reform, 431 U.S. 816, 844 (1977)); see
also Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (holding that
“best interests of the child standard” did not violate a natural
father’s parental rights in adoption proceedings that terminated
his parental rights where natural father did not marry the
mother and had not at any time sought actual or legal custody of
his child).
The scope of parental rights is also defined in
reference to the State’s authority and duty to protect children
in addition to the rights of children. See Troxel, 530 U.S. at
88 (Stevens, J., dissenting) (observing that limitations on
parental rights “have arisen, not simply out of the definition
of parenthood itself, but because of [the Supreme Court’s]
assumption that a parent’s interests in a child must be balanced
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against the State’s long-recognized interests as parens patriae
and, critically, the child’s own complementary interest in
preserving relationships that serve her welfare and protection”
(citations omitted)). Indeed, with regard to the Troxel
decision, a majority of the court contemplated that even where
the parent has a developed, legal parent-child relationship with
the child, there may be special factors that justify state
interference. See Troxel, 530 U.S. at 68, 73 (plurality)
(declining to define the precise scope of the parental due
process right, relying instead on the “sweeping breadth” of the
statute and application of “broad, unlimited power,” and noting
the absence of “special factors that might justify the State’s
interference”); id. at 89 (Stevens, J., dissenting) (“The
constitutional protection against arbitrary state interference
with parental rights should not be extended to prevent the
States from protecting children against the arbitrary exercise
of parental authority that is not in fact motivated by an
interest in the welfare of the child.”); id. at 99 (Kennedy, J.,
dissenting) (“In the design and elaboration of their visitation
laws, States may be entitled to consider that certain
relationships are such that to avoid the risk of harm, a best
interests standard can be employed by their domestic relations
courts in some circumstances.”); cf. id. at 92 (Scalia, J.,
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dissenting) (stating that he would not extend the theory of
parental rights to extend to visitation decisions).
Relying on the plurality in Michael H. v. Gerald D.,
491 U.S. 110 (1989), the Rhode Island Supreme Court noted that
“under certain circumstances, even the existence of a developed
biological parent-child relationship . . . will not prevent
others from acquiring parental rights vis-à-vis the child.”
Rubano, 759 A.2d at 974; see also Troxel, 530 U.S. at 87-88(Stevens, J., dissenting) (discussing Michael H.). Indeed, as
Justice Kennedy stated in his dissenting opinion in Troxel,
“Cases are sure to arise--perhaps a substantial number of cases-
-in which a third party, by acting in a caregiving role over a
significant period of time, has developed a relationship with a
child which is not necessarily subject to absolute parental
veto.” 530 U.S. at 98 (Kennedy, J., dissenting) (citing Michael
H., Quillon, and Lehr); see also id. at 64 (plurality)
(“[P]ersons outside the nuclear family are called upon with
increasing frequency to assist in the everyday tasks of child
rearing.”). Accordingly, “a fit parent’s right vis-à-vis a
complete stranger is one thing; her right vis-à-vis another
parent or a de facto parent may be another.” Id. at 100-101(Kennedy, J., dissenting).
In this case, the parties made a joint decision to
adopt and raise Child. Together, the parties named Child,
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giving her each of their last names, and they lived together
with B.B.’s teenage son as a family unit for a two-year period.
From the time she could talk, Child referred to B.B. as “Papa”
and A.A. as “Daddy,” and they jointly shared all parental care,
duties, and responsibilities for Child from the time she was one
month old. Although A.A. and B.B. intended that A.A. would
adopt Child and retained an attorney to accomplish the adoption,
the adoption never occurred. Additionally, following their
separation, the parties continued to attend counseling together
and entered into a 50/50 written co-parenting agreement.
Accordingly, it appears from the family court’s findings that
B.B. voluntarily incorporated A.A. into the family unit and
encouraged him to share parental responsibilities and custody of
Child.
As the mother in Inoue facilitated the “circumstances
under which [her husband] became [her oldest child’s] ‘legal
father,’” B.B. voluntarily shared custody of Child with A.A.
and, thus, made his own parental rights less exclusive vis-à-vis
A.A. See Inoue, 118 Hawaiʻi at 101, 185 P.3d at 849; see also
530 U.S. at 98 (Kennedy, J., dissenting) (“[A] fit parent’s
right vis-à-vis a complete stranger is one thing; her right vis-
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à-vis another parent or a de facto parent may be another.”).17
The circumstances of this case are entirely distinguishable from
those governed by the grandparent visitation statute considered
in Doe. See 116 Hawaiʻi at 325, 172 P.3d at 1069. In this case,
B.B. voluntarily allowed A.A. to share physical custody of Child
in addition to sharing the duties and responsibilities for
parenting child, and thus the circumstances do not implicate the
17
Cf. Smith v. Guest, 16 A.3d 920, 931 (Del. 2011) (holding that de
facto parent statute did not violate the due process rights of child’s other
legal parent because a de facto parent would also be a “legal ‘parent’” that
would share a “co-equal ‘fundamental parental interest’” in raising the child
with the other parent); C.E.W. v. D.E.W., 845 A.2d 1146, 1152 (Me. 2004)
(holding that person’s status as the de facto parent of a child authorized
the court to consider an award of parental rights and responsibilities to the
person as a parent based on its determination of the best interest of the
child); Rubano, 759 A.2d at 974 (“[U]nder certain circumstances, even the
existence of a developed biological parent-child relationship . . . will not
prevent others from acquiring parental rights vis-à-vis the child.”); Brooke
S.B. v. Elizabeth A. C.C., No. 91, 2016 WL 4507780 (N.Y. Aug. 30, 2016)
(expanding the definition of “parent” to include a partner of a domestic
partnership that agrees to conceive a child and to raise the child together);
In re Parentage of L.B., 122 P.3d 161, 177 (Wash. 2005) (“We thus hold that
henceforth in Washington, a de facto parent stands in legal parity with an
otherwise legal parent, whether biological, adoptive, or otherwise.”); In re
Custody of B.M.H., 315 P.3d 470, 478 (Wash. 2013) (en banc) (“The de facto
parentage doctrine incorporates constitutionally required deference to
parents by requiring that the biological or legal parent consent to and
foster the parentlike relationship. Once a petitioner has made the threshold
showing that the natural or legal parent consented to and fostered the
parent-like relationship, the State is no longer ‘interfering on behalf of a
third party in an insular family unit but is enforcing the rights and
obligations of parenthood that attach to de facto parents.’” (quoting In re
Parentage of L.B., 122 P.3d 161 (Wash. 2005) (en banc))); Randy A.J. v. Norma
I.J., 655 N.W.2d 195, 201 (Wis. 2002) (noting that under Wisconsin’s
equitable parent doctrine, “[o]nce a court determines that a party is an
equitable parent, there is no distinction between the equitable parent and
any other parent; each is endowed with the same rights and responsibilities
of parenthood”), aff’d, 677 N.W.2d 630.
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Hawaiʻi Constitution’s right to privacy as the grandparent
statute in Doe did.18
Additionally, we cannot conclude that B.B. has
established the statute is facially unconstitutional. See
United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial
challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the
Act would be valid.”). The de facto custody provision of HRS §
571-46(a)(2) simply does not have the broad sweep that the
grandparent visitation statute in Doe had. Indeed, HRS § 571-
46(a)(2) is one of several “standards, considerations, and
procedures” that HRS § 571-46 provides for family courts tasked
with handling custody and visitation disputes; it is but one
tool in a court’s toolbox for navigating the varying and complex
circumstances that may arise when custody to a child is in
dispute. Additionally, HRS § 571-46 includes subsection (a)(1),
which provides custody should be awarded to either parent or to
both parents according to the best interests of the child, and
18
Our decision is based on the circumstances presented by this
case. We note that a parent does not relinquish his or her parental rights
by merely relying on childcare assistance from others. As stated, de facto
custody is not established by mere physical custody of a child. Nonetheless,
we decline to adopt a bright line rule regarding the extent of a parent’s
protected liberty interest as “the constitutional protections in this area
are best ‘elaborated with care’” on a case-by-case basis. See Troxel, 530
U.S. at 73 (plurality) (quoting id. at 101 (Kennedy, J., dissenting)).
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importantly, HRS § 571-46(a)(2) may also apply under
circumstances where no parent or no fit parent seeks custody of
the child. HRS § 571-46 is therefore notably distinguishable
from the grandparent visitation statute in Doe. Indeed, the
apparent purpose of the statute in Doe was to provide
grandparents a means to circumvent the decisions of parents
based on the legislature’s finding that “grandparents play a
significant role in the lives of minor children and should be
allowed reasonable visitation rights so long as it is in the
best interests of the child.” Doe, 116 Hawaiʻi at 332 n.6, 172
P.3d at 1076 n.6 (quoting Sen. Stand. Comm. Rep. No. 1053, in
1993 Senate Journal, at 1154). The grandparent visitation
statute was facially invalid as it undermined a parent’s
judgment to not allow grandparents access to one’s child based
merely on a finding that grandparent visitation was in the
child’s best interests. Id. (“Indeed, there can be no doubt
that the legislature intended that visitation, if found by a
court to be in the best interests of the child, may be ordered
over a parent’s objection”); see Troxel, 530 U.S. 57, 67, 120 S.
Ct. 2054, 2061, 147 L. Ed. 2d 49 (2000) (“[I]n practical effect,
in the State of Washington a court can disregard and overturn
any decision by a fit custodial parent concerning visitation
whenever a third party affected by the decision files a
visitation petition, based solely on the judge’s determination
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of the child’s best interests.”). While there certainly may be
situations where a family court’s application of HRS § 571-
46(a)(2) may violate a parent’s constitutionally protected
liberty interests, we do not conclude that the statute is
facially invalid as the grandparent visitation statute in Doe
was.
In distinguishing Inoue, the family court placed great
emphasis on the fact that the parties never married or entered
into a civil union. While it is true that the Inoue opinion
discusses the fact that the parties were married in its
analysis, it was important only because marriage was relevant to
the paternity statute that was specifically challenged by the
mother in Inoue.19 See Inoue, 118 Hawaiʻi at 94, 185 P.3d at 842.
In that case, the biological mother’s husband and the child had
a presumptive “parent child relationship” pursuant to HRS § 584-
4(a)(3)(B) because of the subsequent marriage of the parties and
19
HRS § 584-4(a)(3)(B) (2006) provides,
A man is presumed to be the natural father of a child if:
. . .
After the child’s birth, he and the child’s natural mother
have married, or attempted to marry, each other by a marriage
solemnized in apparent compliance with law, although the
attempted marriage is or could be declared invalid, and:
. . .
With his consent, he is named as the child’s father on the
child’s birth certificate . . . .
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inclusion of husband on the birth certificate. Id. Thus,
marriage was an essential element of the statute challenged by
the mother in Inoue, and her voluntary creation of the
circumstances giving rise to the presumptive parent-child
relationship was important to the ICA, not the existence of a
marriage itself. See id. at 100, 185 P.3d at 848. Indeed,
Inoue found the reasoning of the Rubano case persuasive, see
id., although the parties were not married and the relationship
of the parties was not discussed as an essential fact. See
Rubano, 759 A.2d at 976. The heart of the Rubano decision
concerned the relationship of the parties with the child--not
the relationship between the parties. See id. at 974. In any
event, marriage is not an element of the de facto presumption of
HRS § 571-46(a)(2), the provision on which A.A. bases his claim
for joint custody of Child.20
20
Application of the family court’s marriage requirement would mean
that a grandparent or other family member, such as a hānai parent, would
never be able to establish a de facto custodial relationship with a child so
long as the biological parent remains in the child’s life, even where the
child views the third party as his or her only parental figure.
By extension, we do not agree with B.B.’s contention that
application of the de facto custody provision would create significant
burdens that would apply to all domestic relationships where a single parent
is involved as this is not a case where the parties simply lived together
with a child. See State v. Sturch, 82 Hawaiʻi 269, 274, 921 P.2d 1170, 1175
(App. 1996) (“A person to whom a statute may be constitutionally applied
cannot challenge the statute on the ground that it may conceivably be applied
unconstitutionally to others.” (quoting State v. Kaneakua, 61 Haw. 136, 143,
597 P.2d 590, 594 (1979)). Indeed, we do not believe a person would be
considered a “proper” person to have custody of the child under HRS § 571-
46(a)(2) where the person’s sole connection to the child is a relationship
with the parent. Additionally, we note that living in a household with a
(continued . . .)
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Therefore, because B.B. permitted A.A. to share
physical custody of Child in addition to the parenting
responsibilities and duties with regard to Child, B.B. does not
have a protected privacy interest in excluding A.A. from Child’s
life under the Due Process Clause of the Fourteenth Amendment or
the Hawaiʻi Constitution’s due process and privacy protections.
As such, B.B. has not demonstrated that the application of HRS §
571-46(a)(2) under the circumstances of this case would
implicate his parental rights protected under the federal or
Hawaiʻi constitutions.
Given B.B. has not established that HRS § 571-46(a)(2)
impacted a protected liberty interest nor a privacy interest
under the Hawaiʻi Constitution, the statute’s prima facie de
facto provision, which includes the best interests of the child
standard, satisfies due process. See HRS § 571-46(a)(2).
Indeed, HRS § 571-46(a)(2) provides B.B. with ample protections
as he has not demonstrated the implication of a protected
liberty interest. HRS § 571-46(a)(1) favors the awarding of
custody to the child’s parents, providing that custody “should
be awarded to either or both parents,” and it also provides for
child is not equivalent to having custody of a child although it may be
relevant to the issue.
Additionally, B.B.’s contention that the absence of a legal
financial responsibility upon A.A. to support Child renders him ineligible to
be awarded custody is unsupported by HRS § 571-46(a)(2).
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the maintenance of meaningful contact between the parent and
child unless the parent “is unable to act in the best interest
of the child.” HRS § 571-46(a)(2) states that custody “may” be
awarded to a person who is not a parent “whenever the award
serves the best interest of the child,” and it also creates a
presumption in favor of awarding custody under limited
circumstances to a person who has de facto custody.
Accordingly, the de facto presumption, which is also subject to
the best interests of the child standard, would only apply when
the nonparent custodian is able to demonstrate that he or she
(1) has had “de facto custody” of the child (2) in a stable and
wholesome home and that (3) the custodian is a fit and proper
person. Given that no protected liberty interest is
demonstrated by B.B., the statute satisfies due process as
applied in this case.21 B.B. has therefore not established that
an award of custody to A.A. under HRS § 571-46(a)(2) would
21
The adequacy of the statute is evaluated in reference to whether
a significant liberty interest is implicated. See Guidry, 105 Hawaiʻi at 227,
96 P.3d at 247; see also Lehr, 463 U.S. at 256. The Due Process Clause
“provides heightened protection against government interference with certain
fundamental rights and liberty interests.” Troxel, 530 U.S. at 65(plurality). As we conclude that B.B.’s fundamental parental rights are not
implicated under the circumstances of this case, we need not apply a
heightened scrutiny in evaluating whether HRS § 571-46(a)(2) satisfies due
process. Cf. Doe, 116 Hawaiʻi at 335, 172 P.3d at 1079 (applying strict
scrutiny in determining that grandparent visitation statute was facially
unconstitutional under the Hawaiʻi Constitution’s right to privacy).
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impair his parental rights under the federal or Hawaiʻi
constitutions.22
III. CONCLUSION
For the reasons discussed, the family court
misapprehended the law when it required A.A. to establish that
the application of HRS § 571-46(a)(2) would be constitutional if
applied to his request for joint custody of Child. The plain
language of HRS § 571-46(a)(2) contemplates standing to seek
custody when a person has had “de facto custody” of a child and
meets the other requirements of HRS § 571-46(a)(2). Further, we
hold that B.B. failed to establish that the application of HRS §
571-46(a)(2) to this case would infringe on his fundamental
liberty interests or otherwise violate his right to privacy
under the Hawaiʻi Constitution.23 Accordingly, we remand the case
22
Although it is not necessary to address in this case, it is noted
that the State has a compelling state interest in maintaining the presence of
a child in a stable and wholesome home with fit and proper persons. The
State’s compelling interest and duty with regard to the welfare of children
has long been recognized in this jurisdiction. See In re Guardianship of
Thompson, 32 Haw. 479, 486 (1932). In addition, HRS § 571-46(a)(2) protects
the interests and rights of children. See Troxel, 530 U.S. at 89 n.9
(collecting cases demonstrating that children have constitutionally protected
rights).
23
We reject A.A.’s evidentiary challenges to the expert testimony
presented at the hearing. Given her education and experience, Dr. De Costa
was qualified to testify as an expert in the field of family behaviors and in
the relationship of children with their families. See HRS § 571-46(a)(5)
(providing that the court may decide that qualified “expert’s testimony is
relevant to a just and reasonable determination of what is for the best
physical, mental, moral, and spiritual well-being of the child whose custody
is at issue”). The hypothetical opinion elicited from Dr. De Costa was
admissible under Hawaiʻi Rule of Evidence (HRE) Rule 703. See HRE Rule 703
cmt (1993). Dr. De Costa’s opinions regarding the potential harm to Child as
(continued . . .)
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for proper application of HRS § 571-46(a)(2), including a
determination as to whether A.A. satisfies the three elements of
HRS § 571-46(a)(2) and, if so, for a custody award in Child’s
best interests.
Accordingly, the family court’s December 11, 2014
“Findings of Fact, Conclusions of Law; Order/Final Judgment” is
vacated, and the case is remanded to the family court for
further proceedings consistent with this opinion.
Michael S. Zola /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian J. De Lima, /s/ Sabrina S. McKenna
Francis R. Alcain and
Justin P. Haspe /s/ Richard W. Pollack
for respondent /s/ Michael D. Wilson
a result of the termination of the relationship between A.A. and B.B. and the
doctor’s concerns about Child having a continued relationship with A.A. were
relevant, within the doctor’s expertise, and would assist the court in
determining Child’s best interests. See HRS § 571-46(a)(5). Dr. De Costa’s
testimony regarding the mental health of B.B.’s son, including her diagnosis,
was admissible as a proper foundation was laid, and it was relevant to the
court’s consideration of the best interests of Child and whether A.A. was a
fit and proper person for purposes of applying the de facto custody
presumption of HRS § 571-46(a)(2). Dr. De Costa’s testimony regarding B.B.’s
son’s test scores was admissible under HRE Rule 703 without their
introduction into evidence. And, the family court’s finding of fact
regarding Dr. De Costa’s testimony did not misstate her testimony and was
supported by the record.
With regard to Dr. Wyss’s testimony, it appears that the court
considered the testimony of Dr. Wyss, but it found Dr. De Costa’s testimony
more compelling, which is within the province of the trial court. See Exotics
Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116 Hawaiʻi. 277, 299, 172
P.3d 1021, 1043 (2007). Lastly, any error by the family court in restricting
Dr. Wyss’s testimony to the contents of his report, or in not admitting his
progress notes, was harmless because Dr. Wyss was permitted to testify that
he was aware of the sex-abuse allegations against A.A. and that he did not
believe that A.A. posed a threat of abuse to Child. However, if further
evidentiary proceedings are held on remand, the family court may revisit its
ruling regarding the proffered evidence.
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