FROM THE FAMILY COURT OF THE THIRD CIRCUIT (CAAP-17-0000539;
FC-M NO. 14-1-0034K)
Michael S. Zola for petitioner.
Timothy Luria Naoko C. Miyamoto Katherine M.M. Lukela for
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
previous decision in this case, A.A. v. B.B., 139
Hawai'i 102, 384 P.3d 878 (2016), we vacated the final
judgment of the family court denying the petition of A.A.
(hereafter W.N.) for joint custody of a minor child with B.B.
(hereafter S.M.). The case was remanded to the family court
with instructions that it determine whether W.N. established
a prima facie case of de facto custody, and if so, that the
court render a custody award in the child's best
remand, the family court entered an order without holding a
further evidentiary hearing or taking additional evidence in
which it found that W.N. was not a "fit and proper
person" as required to establish a prima facie
entitlement to custody of the minor child. W.N. appealed the
family court's adverse ruling, and the request to
transfer the case to this court was granted. We conclude that
the family court erred in not holding a further hearing to
ascertain whether W.N. is presently a fit and proper person
and whether a custody award would be in the minor child's
present best interests. Accordingly, we vacate the family
court's 2017 Order and remand the case for a further
evidentiary hearing consistent with this opinion. We also
provide guidance as to evidentiary matters that may arise on
FACTS AND PROCEDURAL HISTORY
and S.M. entered into a committed relationship in March 2009.
In 2011, W.N. and S.M. jointly decided to bring S.M.'s
newborn biological granddaughter (Child) into their home to
raise her as their daughter. S.M. legally adopted Child, and
S.M. and W.N. jointly shared parental care, duties, and
responsibilities for Child. W.N., S.M., Child, and S.M.'s
teenage son (Son) lived together as a family unit from
October 2011 until October 2013. In October 2013, W.N. and
S.M. separated, and they entered into a written 50/50
co-parenting agreement for Child. In April 2014, S.M. sent
W.N. a letter declaring that he was revoking the 50/50
co-parenting agreement on the basis that it was his parental
right to do so.
2014, W.N. filed a petition in the Family Court of the Third
Circuit (family court) seeking joint legal and joint 50/50
physical custody of Child (custody petition) pursuant to
Hawaii Revised Statutes (HRS) § 571-46(a) (2) (Supp.
2013),  W.N. asserted that he was the de facto
parent of Child and was a fit and proper person to have care,
custody, and control of Child. S.M. sought dismissal of the
custody petition contending that W.N. was a legal stranger to
Child, that HRS § 571-46(a)(2) was unconstitutional, and
that W.N. had no standing before the family court.
October 3, 2014, the family court held an evidentiary hearing
on the custody petition (2014 Hearing). Scott and Janet
Crosier (collectively, the Crosiers) testified that each had
supervised visitations between W.N. and Child, and they
favorably described the interactions between W.N. and Child.
W.N. sought to introduce the visitation reports into evidence
that the Crosiers had each prepared contemporaneously with
the supervised visitations. The family court sustained
S.M.'s objections to their admission because they
contained hearsay statements of Child, rejecting W.N.'s
argument that the statements were not offered for the truth
of the matter asserted by Child. The court also sustained
S.M.'s foundation objections to the Crosiers using their
respective visitation reports to refresh their recollections.
As to Janet Crosier, W.N. proffered that the reports would
aid her in recalling Child's behaviors and interactions
with W.N. that she could not remember.
Jamuna Wyss, who was qualified as an expert in parent-child
psychological relationships and parenting styles, testified
that he taught W.N. parenting techniques. Dr. Wyss testified
favorably as to W.N.'s relationship with Child. He also
testified that Child would likely suffer "damaging
psychological consequences" if W.N.'s relationship
with Child was terminated. W.N.'s counsel asked Dr. Wyss
if he was aware of any sexual abuse allegations against W.N.
and sought to introduce a letter written by Dr. Wyss to Child
Welfare Services. The court sustained S.M.'s objection to
the admission of the letter and did not allow Dr. Wyss to
testify as to his opinion on the allegations because it was
outside the scope of his April 25, 2014 clinical note
(clinical note) . Dr. Wyss then testified generally that he
did not believe W.N. posed any threat to Child.
W.N. sought to introduce progress notes from his individual
therapy sessions with Dr. Wyss, as well as S.M. and
W.N.'s couples therapy sessions with Dr. Wyss. The court
again sustained S.M.'s objection to the introduction of
the progress notes as outside the scope of Dr. Wyss's
clinical note. Further, Dr. Wyss testified that he taught
W.N. anger management techniques and related that, in his
opinion, W.N. had made progress on anger
Jennifer De Costa, a family counselor and a licensed marriage
and family therapist, was called by S.M. and qualified as an
expert in family behavior and relationships. Dr. De Costa
testified that she had treated Son and regularly used written
tests to assess Son's depression and anxiety in
treatment. Dr. De Costa stated that she observed a
correlation between fluctuations in Son's test scores and
his interactions with W.N. S.M. asked Dr. De Costa if Son had
displayed "extreme regression" since W.N. began
visitation with Child, and Dr. De Costa responded
Costa testified that she also met with Child and initially
had no concerns as to Child's development. After visits
started with W.N., however, Dr. De Costa stated that Child
began to exhibit "some regressive behaviors." Dr.
De Costa answered "yes" when asked hypothetically
whether she would have concerns about Child having a
custodial relationship with W.N. given his anger management
problem, her knowledge of W.N.'s relationship with Son,
and Child's regressive behaviors. Dr. De Costa further
testified that she did not think that termination of the
relationship would harm Child.
also called W.N.'s sister, C.N., to testify. C.N.
testified that she had concerns about W.N.'s temper,
which she had expressed to S.M., and that W.N.'s behavior
had not improved.
the parties' arguments, the family court ruled that W.N.
had not shown a compelling state interest as to why the de
facto custody presumption of HRS § 571-46(a) (2) should
apply to him under a strict scrutiny standard. The family
court denied the custody petition and allowed S.M. to stop
all visitations. On December 11, 2014, the family court
entered findings of fact, conclusions of law, and its final
judgment on the custody petition.
appealed, and following transfer of the case to this court,
we held that application of HRS § 571-46(a) (2) would
not infringe upon S.M.'s fundamental liberty interests or
right to privacy under the Hawai'i Constitution, and that
W.N. was therefore not required to establish a compelling
state interest as a prerequisite for the family court to make
a de facto custody determination. A.A. v. B .B., 139
Hawai'i 102, 108, 113-16, 384 P.3d 878, 884, 889-92
(2016) . We noted that the record may support a finding that
W.N. satisfied all elements of HRS § 571-46(a)(2), which
would invoke the de facto custody presumption. Id.
at 107 n.8, 384 P.3d at 883 n.8. Additionally, although this
court held that any error by the family court in restricting
Dr. Wyss's testimony or excluding the progress notes was
harmless under the circumstances, we stated that "if
further evidentiary proceedings are held on remand, the
family court may revisit its ruling regarding the proffered
evidence." Id. at 116 n.23, 384 P.3d at 892
n.23. We vacated the final judgment denying W.N.'s
custody petition and remanded the case to the family court
with instructions that the court determine whether W.N. met
the requirements for a de facto custody presumption pursuant
to HRS § 571-46(a)(2), and if so, for a custody award in
the child's best interest. Id. at 116-17, 384
P.3d at 892-93.
status conference following remand, the family court
indicated that it would limit its review to the existing
record and invited the parties to provide briefing on whether
it had authority for such limitation. W.N. submitted a memorandum
arguing that there was sufficient evidence in the record to
determine that he met the elements for a de facto custody
presumption and that an award of joint custody of Child to
him would be in the best interests of Child. In the
alternative, if the family court did not find that there was
sufficient evidence to establish a de facto custody
presumption, W.N. argued that an evidentiary hearing was
necessary to supplement the 2014 Hearing record. In support,
W.N. contended that his arguments and evidence presented at
the 2014 Hearing were not focused on the elements of HRS
§ 571-46(a)(2) because the family court requested
briefing on whether W.N. had a constitutional right and a
statutory basis to assert a custodial claim.
maintained that it would be error for the family court to
conclude that he failed to meet his burden to establish that
he is a "fit and proper person" without an
opportunity to supplement the record, particularly in light
of this court's observation that the record may support a
finding that W.N. met all the elements of HRS §
571-46(a)(2). W.N. also argued that the family court
foreclosed him from presenting evidence from Dr. Wyss to
rebut allegations of sexual abuse that were used to determine
W.N.'s fitness for custody. W.N. further argued that it
would be a manifest injustice for the family court not to
consider new evidence on remand regarding W.N.'s fitness
for custody. As an offer of proof, W.N. stated that since the
2014 Hearing, he had obtained a State of Hawaii Department of
Human Services foster care license, for which he underwent a
filed a memorandum in support of limiting the family
court's review on remand to the existing record. S.M.
argued that whether or not W.N. was a fit and proper person
must be determined as of the date of the 2014 Hearing because
considering new evidence on remand would improperly afford
W.N. a "second bite of the apple" and an
opportunity to present improvements to "his
situation" in order to increase his fitness for custody.
Prior to holding a new evidentiary hearing, S.M. argued, the
family court should determine from the existing record
whether W.N. satisfied the elements of HRS § 571-46 (a)
(2) for a de facto custody presumption.
family court ruled that it would base its review on the 2014
Hearing record to determine whether W.N. was entitled to a de
facto custody presumption. The court stated that it would
afford the parties an opportunity to raise any evidentiary
objections, in writing, from their review of a video
recording of the 2014 Hearing. W.N. reiterated the need to
supplement the record in order to present evidence on events
subsequent to the 2014 Hearing bearing upon the issue of
whether he is a fit and proper person. The court indicated
that it would take this argument under consideration.
subsequently filed a petition raising objections to the
exclusion of the Crosiers' visitation reports and Dr.
Wyss's progress notes. Rather than excluding the
Crosiers' visitation reports, W.N. argued, any hearsay
statements therein could be redacted and the visitation
reports could then be considered in determining W.N.'s
entitlement to a de facto custody presumption and in
rendering a custody award in the best interests of Child. In
addition, W.N. objected to the exclusion of Dr. Wyss's
progress notes and argued the court should permit Dr. Wyss to
provide testimony to rebut the sexual abuse allegations
against W.N. Dr. Wyss's testimony should address a letter
he wrote to Child Welfare Services regarding the allegations,
W.N. contended, and the letter should be admitted into
evidence. S.M. filed a statement of no objection to
limitation to the 2014 Hearing record on remand.
family court denied all of W.N.'s evidentiary objections.
The court found that the Crosiers' visitation reports
were hearsay and the Crosiers were allowed to testify, and
that Dr. Wyss's progress notes were cumulative. The
family court then determined that based upon its review of
the 2014 Hearing record, W.N. had failed to establish a prima
facie case under HRS § 571-46(a)(2) for a de facto
custody presumption. Accordingly, the family court ruled that
it would not be in the best interests of Child to award W.N.
8, 2017, the family court entered its Findings of Fact and
Conclusions of Law and Order (2017 Order). The family court
found that a review of the transcripts and the audio and
video recording of the 2014 Hearing enabled it to judge
credibility and determine whether W.N. satisfied the elements
of HRS § 571-46(a)(2). Based upon this evidence, the
family court concluded that while W.N. met two of the three
elements of HRS § 571-46(a)(2), he did not meet his
burden as to the "fit and proper person" statutory
element because of (1) his undisputed anger management
problem and (2) Dr. De Costa's and C.N.'s unfavorable
testimony, including Dr. De Costa's testimony as to
Child's regression and Son's performance on
psychological tests and "extreme regression." The
family court thus denied W.N.'s custody petition.
timely filed a Notice of Appeal from the 2017 Order. The case