Joint custody means you share legal and physical custody with the other parent.

Joint physical custody means that the child lives with you and the other parent according to a schedule laid out by a parenting plan. The parenting plan should allow both you and the other parent to have frequent, continuing, and meaningful contact with the child.

Joint legal custody means that you and the other parent share decision-making power about important decisions regarding the child.¹

¹ HI ST § 571-46.1(b)

The parents of the child are entitled to have custody. If it is in the child’s best interest, someone other than the child’s mother or father can be given custody if that person:

• has been acting as the child’s caretaker (“de facto custody”);
• is in a stable and wholesome home; and
• is fit and proper.¹

¹ HI ST § 571-46(a)(2)

If a judge determines that family violence has occurred, the judge should assume (“presume”) that joint custody or sole custody with the abuser is not in the best interest of the child. However, the abusive parent can try to present evidence to change the judge’s mind.¹

When making a decision about custody, the judge must consider the:

• safety and well-being of the child;
• safety and well-being of the parent who is the victim of family violence; and
• abuser’s history of committing, or causing reasonable fear of, physical harm, bodily injury, or assault.¹

Additionally, if a parent relocates because s/he is a victim of family violence, the judge cannot consider the victim’s relocation or absence as a negative factor when making a decision regarding custody or visitation.¹

¹ HI ST § 571-46(a)(9)

An abuser cannot be granted custody or visitation of a child if:

• your child was conceived as the result rape or sexual against you; and
• the abuser was convicted of the crime of rape or sexual assault in any state.¹

However, even if the judge does not grant an abuser custody or visitation because your child was conceived through rape or sexual assault, the judge can still order the abuser to pay child support.²

Additionally, the abuser can be granted custody or visitation if after the abuser’s conviction:

• you and the abuser live together and create an environment where you both care for and parent the child; and
• you request that a judge grant the abuser custody or visitation and the judge finds that it would be in the child’s best interest.³

¹ HI ST § 571-46(a)(17)
² HI ST § 571-46(a)(17)(B)
³ HI ST § 571-46(a)(17)(C), (a)(17)(D)

A judge decides custody and visitation orders according to what the judge considers to be in the child’s best interest.¹ To decide what is in the best interest of the child, the judge must consider several factors, including, but not limited to:

• a parent’s history of sexual or physical abuse of any of your children;
• a parent’s history of neglect or emotional abuse of any of your children;
• the quality of the parent-child relationship;
• each parent’s history of caregiving or parenting before and after any type of marital separation or relationship ending;
• each parent’s cooperation in creating and carrying out a plan that meets the child’s needs, interests, and schedule; however, this factor will not be considered if the judge finds that one parent has committed family violence;
• the physical health needs and emotional needs of the child;
• the safety and educational needs of the child;
• the child’s need for a relationship with his/her siblings;
• each parent’s actions showing that s/he allows the child to continue a relationship with family members through family events and activities; however, this factor will not be considered if the judge finds that one parent has committed family violence;
• each parent’s actions showing that s/he separates the child’s needs from the parent’s needs;
• evidence of each parent’s past or current alcohol or drug abuse;
• each parent’s mental health;
• the reason for, and level of, conflict present within the family; and
• a parent’s prior and purposeful misuse of the protection from abuse restraining order process to gain an advantage in the custody process.²

Note: The judge cannot consider a parent’s disability as the only factor when making a decision about custody or visitation. If there is an allegation that a parent’s disability impairs his/her parenting ability, it must be proven by showing a clear connection between the disability and the alleged inability to be a good parent.³

¹ HI ST § 571-46(a)(1)
² HI ST § 571-46(b)
³ HI ST § 571-46.6

Es posible que en algún momento se mude con sus hijos/as del estado donde se dio la orden final de custodia. Para información sobre cómo solicitar que se transfiera el caso de custodia a un nuevo estado, por favor vaya a Transferir un caso de custodia a un estado diferente, en nuestra página general de Custodia. Sin embargo, es importante tener en cuenta que es probable que necesite obtener permiso de la corte o de el/la otro/a padre/madre para mudarse de estado. Por favor hable con un/a abogado/a para asegurarse que sus planes de mudanza no violen su orden de custodia o las leyes de secuestro parental de su estado.

Before you file for custody, you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of joint custody order after a settlement or trial.

However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.

Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.

You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page. 

In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.

The legal paperwork that starts a custody case is called a petition. You may file your custody petition in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives.

The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.

Sometimes, non-parents can also file for custody or visitation rights. To find out about filing as a non-parent, talk to a lawyer.

The custody petition forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our Hawaii Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.

Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for a restraining order and get temporary custody as part of the restraining order.

After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.

There are two different ways that you might be able to get a final custody order – by coming to an agreement, or by going to trial.

Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.

Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.