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A.A. v. B.B.

Supreme Court of Hawaii

November 3, 2016

A.A., Petitioner/Petitioner-Appellant,
v.
B.B., Respondent/Respondent-Appellee.

         APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT (CAAP-15-0000022; FC-M NO. 14-1-0034K)

          Michael S. Zola, for petitioner

          Brian J. De Lima, Franci n R. Alcain and Justin P. Haspe for respondent

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          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 Hawai'i Revised Statutes (HRS) § 571-46(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. 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] 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 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."

          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 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- 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 Hawai'i 144, 155, 44 P.3d 1085, 1096 (2002); Fujikane v. Fujikane, 61 Haw. 352, 354, 604 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 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 ...


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