Hawai'i: Filing for Custody (With or Without Divorce)

A child benefits when both parents care for them in a stable arrangement. Opening a court case is the first step toward getting an enforceable court order to support stable parenting.

Many parents represent themselves in court, meaning they don't have a lawyer. They file the case on their own, and they may or may not go on to hire legal representation. Others hire a lawyer first, and their lawyer prepares and e-files all court forms for them.

Before you start

Be aware that in Hawai'i family court:

• A divorce includes a determination of child custody.
• Parents who aren't married to each other open a paternity case to establish child custody.
• The parent who files is the plaintiff, and the parent who responds is the defendant. You may hear the alternative terms petitioner and respondent.

If either parent is in the military, you may have special situations to consider — for example, a nonmilitary spouse may have to leave military housing. Talk to your military legal assistance office or Family Advocacy Center about drafting a separation contract or military parenting plan.

If at all possible, at least consult with a lawyer to get your questions answered and ensure your court process starts off correctly. A lawyer licensed in Hawai'i can practice anywhere in the state. Most lawyers are on O'ahu and may be willing to travel to you.

What you'll pay

Filing generally costs under $300, including the price of a parenting education class and small fees for things like copies. Once your case is open, it's free to file motions. Filing for a restraining order is also free.

The biggest influences on how much a divorce costs are whether you hire a lawyer and how quickly you and your ex can reach agreement on all relevant issues. That's also true for unmarried parents who only need to establish child custody. While the cost of a DNA test to establish parenthood (if you need this) is relatively small, related expenses can increase if one of you doesn't cooperate.

Completing initial paperwork

Complete the proper forms and file with the family court on your island. (Again, if you have an attorney, they'll do this for you.)

Look up the family court forms for divorce or paternity:

• O'ahu (First Circuit)
• Maui and Moloka'i Lāna'i (Second Circuit)
• Hawai'i (Third Circuit)
• Kaua'i (Fifth Circuit)

You may instead create court forms through LegalNavigator.

Let the court know of any emergency situation. If there has been abuse, you can seek a temporary restraining order.

Most self-represented parents file their case (or respond to the other parent's filing) at a courthouse. Another option is to register for the e-filing system (JEFS) that lawyers use so papers can be filed and served online.

If you're divorcing

Regardless of where you were married, you can divorce in Hawai'i. However, there's a residency requirement. The plaintiff must have lived on the island for at least the past three months before filing in that island's family court. Additionally, either parent must have lived somewhere in Hawai'i for at least the past six months. Living on a military base in Hawai'i counts.

Make sure you use the right forms: "uncontested" if you've reached full agreement with the other parent, "contested" if you need the judge to decide something.

Once you file (or are served with) a divorce complaint, an automatic restraining order (ARO) forbids you to:

• Hide your assets
• Take your child out of school
• Take them off the island where they live
• Disappear with them

An automatic restraining order doesn't imply there's been abuse. These generic rules will apply until the judge finalizes your divorce.

At the end of a 60-day waiting period, if your divorce is uncontested, it might be finalized immediately. But as long as you're arguing, it could drag on for a year or more.

If you're not married

You can file a paternity case in Hawai'i if your child may have been conceived in Hawai'i or if the mother or possible father is to be served with papers in Hawai'i.

Among the information you must provide:

• The name of anyone who might be a parent (biologically or legally)
• Everywhere your child has lived over the past five years
• Whether Child Protective Services has been involved
• Any child support order you already have

You won't receive an automatic restraining order; that's only for people who are divorcing.

Serving the other parent and responding to service

If both parents (or their lawyers on their behalf) are using the e-filing system JEFS, service can be completed online.

But if either parent is submitting documents to the courthouse, papers must be served in the traditional way. These methods include:

• Asking anyone over 18 to physically give papers to the other parent
• Hiring a sheriff or professional process server for $100–$200 depending on turnaround time (more if the other parent is far away or hard to find)
• Sending the papers by certified or registered mail with restricted delivery so the other parent has to sign for them (if the court allows it)

Once your case is open

Keep trying to work with the other parent. The court will probably require you to submit a parenting plan, and the process of writing one can be very helpful. A plan provides a structure for how you'll care for your child.

Include a detailed parenting schedule appropriate for your child — for example, considering the feasibility of interisland visits.

You can view your previous documents online through eCourt Kokua, or you can go to the courthouse and request this information by providing your case number. There's a fee if you need to purchase documents.

Confidentiality

Divorce records in Hawai'i are public, meaning anyone can view your initial petition for divorce, your subsequent documents and your final decree.

Paternity records for cases filed in 2020 and earlier are confidential (unless a judge ordered otherwise). For cases filed in 2021 and later, the public can see document titles in eCourt Kokua, but they can't access documents.

Sensitive information like Social Security numbers won't be revealed. If you have a reason why your records should be sealed (kept private), try asking the judge.

Legal help in Hawai'i

Relevant chapters of the Hawai'i Revised Statutes (Volume 12) may include:

• 571: Family Courts
• 576D: Child Support Enforcement
• 580: Annulment, Divorce, and Separation (for divorcing spouses)

Hawai'i State Law Library system: Legal Services
Affordable lawyers and help for immigrants, students with special needs, and other people with specific concerns

Self-Help Centers of the Hawai'i State Judiciary
Volunteer attorneys and legal hotlines

Volunteer Legal Services of Hawai'i (VLSH)
Volunteer attorneys

Legal Navigator
Child support, domestic violence, foster care, guardianship, termination of parental rights and other topics.

Legal Aid Society of Hawai'i (LASH)
Help with understanding forms and knowing your rights

Domestic Violence Action Center
Victims' advocates, risk assessments and safety plans, and accompaniment to court

If you need a disability accommodations coordinator in court, contact them in advance. Military families may seek help from StatesideLegal.

Preparing for what comes next

What happens next in your Hawai'i child custody case depends on whether you and the other parent reach an agreement.

If you filed an agreement (or do so at any point before trial), a judge will review your settlement to ensure it's good for the child. You may not need to appear in court.

If you don't file an agreement, the court process will be longer. The state Child Support Enforcement Agency could get involved. Not all Hawai'i parents have to go to mediation, but the judge could order it. As you go to hearings or head to trial, you'll need to be prepared every step of the way.

The Custody X Change online app offers a parenting plan template, custom custody calendars, parent-to-parent messaging, an expense tracker and more. You can use it to put together proposals for the other parent, negotiate, prepare settlement paperwork or organize evidence.

Our professional sources

We thank Jackie Kong, Esq. and Tony Perrault of Perrault | Alvarez for sharing their professional expertise with us.