Saturday, August 13, 2022
Hawai'i Free Press

Current Articles | Archives

Thursday, November 10, 2016
Hawaii Supreme Court Orders Retrial in Gay Custody Case
By Selected News Articles @ 3:08 PM :: 4342 Views :: Family

De Facto Custody Rule Survives Challenge

by Nicholas Fillmore, Court House News, November 6, 2016

HONOLULU (CN) — The Hawaii Supreme Court ruled unanimously that a family court judge made the wrong call in denying joint custody to two men who were never married but agreed to co-parent a child after they split up.

"AA" and "BB" agreed in 2011 to adopt and raise BB's infant granddaughter and live together as a family and share parental duties. AA never formally adopted the child, and the men never got married or entered into a civil union.

After their separation, they came to a "50/50 co-parenting agreement." But in 2014, BB wrote AA a letter revoking the agreement claiming it was his "parental right" to do so.

AA subsequently filed for joint custody, citing Hawaiian statutes that say custody of a child may be awarded to someone other than the father or mother when it is in the child's best interest and involves a person "who had de facto custody of the child."

A family court judge, however, ruled that de facto custody didn't apply to AA since the men were never married or legally joined despite the ability to do so.

But in a Nov. 3 decision, the Hawaii Supreme Court unanimously ruled that whether or not AA and BB married is not relevant in the case, and that the family court — by not deciding whether AA made his de facto custody case or making findings contrary to AA's claims — essentially required AA to prove the constitutionality of a law that is "presumptively constitutional."

Writing for the high court, Justice Richard Pollack said that the family court judge should have inquired into whether AA satisfied the de facto custody test and whether joint custody is in the child's best interest — by determining whether AA and BB raised the child in a "stable and wholesome home" and if AA is a "fit and proper person."

And while BB argued that AA used the de facto custody rule to interfere with his constitutional right to raise the child and "protect his child from the conduct, belief, opinions, language personality and demeanor of AA," the high court ruled BB failed to establish that the statute is facially unconstitutional.

The justices also noted that BB "voluntarily allowed AA 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 Hawaii Constitution's right to privacy."

The high court remanded the case to the family court judge, who must determine whether AA satisfies the requirements of a de facto parent and whether joint custody is in the best interests of the child.

AA is represented by Michael Zola of Kailua Kona. BB is represented by Brian de Lima, also of Kona. Neither party could be immediately reached for comment.

PDF: Court Ruling

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

ACA Signups Hawaii

Alliance Defending Freedom

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

AntiPlanner

Antonio Gramsci Reading List

A Place for Women in Waipio

Astronomy Hawaii

Back da Blue Hawaii

Ballotpedia Hawaii

Better Hawaii

Broken Trust

Build More Hawaiian Homes Working Group

ChinaTownWatch.com

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

DVids Hawaii

FIRE

Fix Oahu!

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Habele.org

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii Legal News

Hawaii Legal Short-Term Rental Alliance

Hawaii Life Alliance

Hawaii March for Life

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

HIEC.Coop

HiFiCo

Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Navy League

Honolulu Traffic

House Minority Blog

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

July 4 in Hawaii

Kakaako Cares

Keep Hawaii's Heroes

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

MentalIllnessPolicy.org

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

NAMI Hawaii

Natatorium.org

National Christian Foundation Hawaii

National Parents Org Hawaii

NFIB Hawaii News

No GMO Means No Aloha

Not Dead Yet, Hawaii

NRA-ILA Hawaii

Oahu Alternative Transport

Obookiah

OHA Lies

Opt Out Today

OurFutureHawaii.com

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons

Pro-GMO Hawaii

P.U.E.O.

RailRipoff.com

Rental by Owner Awareness Assn

ReRoute the Rail

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Save Dillingham Airfield

School Choice in Hawaii

SenatorFong.com

Sink the Jones Act

Statehood for Guam

Talking Tax

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

UCC Truths

US Tax Foundation Hawaii Info

VAREP Honolulu

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii

Yes2TMT