From Hawaii State Supreme Court (LINK)

No. SCAP-15-0000022, Thursday, June 30, 2016, 11:15 a.m.

WILLIAM NEWCOMB, Petitioner/Petitioner-Appellant, vs. STEPHEN MCPEEK, Respondent/Respondent-Appellee.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner: Michael S. Zola

Attorneys for Respondent: Brian J. De Lima, Francis R. Alcain, and Justin P. Haspe

NOTE: Order granting Application for Transfer, filed 11/06/15.

COURT: MER, C.J.; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

This case was transferred to this court from the Intermediate Court of Appeals (ICA) on November 6, 2015. It concerns the interpretation and constitutionality of Hawai`i Revised Statutes (HRS) § 571-46, which provides standards that family courts apply in custody proceedings. Specifically, this case raises issues with regard to the awarding of custody to nonparents who have de facto, or actual, custody under HRS § 571-46(a)(2).

Petitioner and Respondent were in a committed relationship and living together when Respondent legally adopted Child. Petitioner and Respondent made the decision to adopt child and raise her as a family. Petitioner also planned to adopt Child; however, Petitioner’s planned adoption of Child never occurred, and the parties later ended their relationship. Petitioner filed a petition for joint custody with the Family Court of the Third Circuit (family court), seeking joint custody of Child pursuant to HRS § 571-46(a)(2). Following an evidentiary hearing in which the family court received expert testimony from both Respondent and Petitioner, the family court denied Petitioner’s petition for joint custody based on a finding that Child would not be harmed from termination of the relationship and because Petitioner did not establish a compelling state interest as to why HRS § 571-46(a)(2) should apply when in fact the parties were not married or in a civil union.

Petitioner raises four points of error on appeal: (1) the family court erroneously interpreted Hawai`i and federal law in concluding that it would infringe on Respondent’s parental autonomy to find Petitioner was a de facto parent; (2) the family court abused its discretion in qualifying Respondent’s expert and receiving her testimony; (3) the family court abused its discretion in overruling Petitioner’s objections to Respondent’s expert’s testimony; and (4) the family court erred in requiring Petitioner to establish the constitutionality of the application of HRS § 571-46(a)(2) in this case. Respondent maintains that he is the only legal parent of Child and that the family court did not abuse its discretion in concluding that Petitioner had not established a right to joint custody of Child. Respondent also argues that the family court did not abuse its discretion in qualifying Respondent’s expert.