FROM THE FAMILY COURT OF THE THIRD CIRCUIT (CAAP-15-0000022;
FC-M NO. 14-1-0034K)
Michael S. Zola, for petitioner
J. De Lima, Franci n R. Alcain and Justin P. Haspe for
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
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.
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.
A. Factual Background
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.
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.
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.
A.A.'s Petition for Joint Custody
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). 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."
family court held an initial hearing on A.A.'s petition
for joint custody in June 2014. 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.
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." 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.
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. 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
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.
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."
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
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. 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.
Interpretation and Application of HRS §
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:
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
(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).
(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. In his petition for custody,
A.A. does not seek custody based on alleged parental status
under subsection (a)(1).
(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 ...