Custody and Visitation

Custody and Visitation

Question: What is the difference between physical custody vs. legal custody?
Answer: Physical custody is physical possession of the child. Legal custody is legal decision making concerning the child on matters such as: health care; education; and, extracurricular activities.

Question: What determines which parent has physical custody of the child?
Answer: See attached physical custody statute, Hawaii Revised Statutes Section 571-46 (click)

Question: What determines the non-custodial parent's visitation schedule?
Answer: Ideally, the non-custodial parent's visitation schedule takes into account the child's age, developmental stage, temperament, and each parent's availability and ability to meet the child's needs. See The Family Court of the First Circuit Visitation Recommendations (click).

Question: When does the Court award joint physical custody?
Answer: The Court awards joint physical custody when both parents agree, or after a contested custody hearing when the Court determines that joint physical custody is in the child's best interests.

Question: If one parent has physical custody, does that same parent automatically have legal custody?
Answer: If one parent has physical custody, that parent often also has legal custody. However, the Court often awards both parents joint legal custody in an effort to keep both parents involved in the child's life.

Question: When should both parents not have joint legal custody?
Answer: Both parents should not have joint legal custody in relationships characterized by domestic violence or in relationships where there is a clear power imbalance between the parents, especially if the custodial parent (e.g., mother) is afraid of the non-custodial parent (e.g., father) or if the custodial parent   compromises the child's interests too readily in an effort to appease the non-custodial parent. Additionally, both parents should not have joint legal custody when there is a significant disparity in the parents' abilities to see the world through the eyes of the child and in the parents' willingness to do the research and footwork necessary to make good decisions for the child. The fact that per-separation one parent acquiesced in the other parent's decisions makes it a possibility that post-separation the first parent will delegate decision making to his/her new partner, so that the second parent finds him herself making decisions with the first parent's new partner who is a non-parent. Finally, both parents should not have joint legal custody if they live in very different time zones (e.g., Hawaii and East Coast) and/or if one parent is often hard to reach due to work and/or extracurricular activities schedules.

Question: What happens if both parents have joint legal custody and they cannot agree on a decision?
Answer: If both parents have joint legal custody and they cannot agree on a decision, then neither parent can make the decision unless one parent has tie breaking authority specified in the Court order. The parents will have to retain a third party professional (e.g., Parenting Counselor, mediator, Parenting Coordinator, child specialist) to help them reach agreement on the decision that needs to be made. If with professional assistance the parents are still unable to agree on the decision, then the Court will have to make the decision for the parents.

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