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