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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

________________________________________________________________

DJ, Respondent/Plaintiff-Appellant,

vs.

CJ, Petitioner/Defendant-Appellee.

________________________________________________________________

SCWC-17-0000027

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-17-0000027; FC-D. NO. 12-1-6689)

APRIL 13, 2020

McKENNA, POLLACK, AND WILSON, JJ., WITH NAKAYAMA, J., 

CONCURRING AND DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

In their 2012 divorce, CJ (Mother) and DJ (Father) were 

granted joint legal and physical custody of their two minor 

children. In 2016, Mother filed a motion for post-decree relief

in the Family Court of the First Circuit (“family court”), 

requesting sole physical custody and joint legal custody, so 

Electronically Filed

Supreme Court

SCWC-17-0000027

13-APR-2020

08:12 AM
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that she could relocate from Hawaiʻi to North Carolina with the 

children and their soon-to-be-stepfather. 

More than six months after Mother filed her motion for 

post-decree relief, the family court held a half-day trial on 

the motion. One week before the trial, a social worker in the 

family court’s Custody Investigations Unit (“CIU”) completed a 

custody evaluation investigation and report (“CIU Report” or 

“Report”). It is unclear when the parties received the Report.

Both Mother and Father proceeded to trial without attorneys. 

Father, who had a Tagalog interpreter available at trial, 

experienced difficulty cross-examining several witnesses. When 

the family court indicated it was calling the CIU social worker 

as a witness, Father orally requested a continuance so that he 

could obtain the assistance of an attorney. The family court 

denied Father’s oral motion as untimely, then ruled that it was 

in the children’s best interests to relocate with Mother. 

On appeal, Father argued that the family court abused its 

discretion in: (1) denying his motion for a continuance at 

trial, and (2) considering the CIU Report in granting Mother’s 

motion for post-decree relief. The Intermediate Court of 

Appeals (“ICA”) majority vacated the family court’s ruling, 

holding that the family court abused its discretion in denying 

Father’s motion for a continuance to seek an attorney. The
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majority did not address whether the family court abused its 

discretion in considering the CIU Report.

Mother’s application for writ of certiorari presents two 

questions: (1) whether the ICA erred in holding that the family 

court abused its discretion in denying Father’s motion for a 

continuance at trial; and (2) if so, whether the family court 

abused its discretion in considering the CIU Report in ruling 

upon Mother’s motion for post-decree relief. 

The main populated Hawaiian Islands are some of the most 

remote populated land masses in the world, located about 2,400 

miles from California and 4,000 miles from Japan. When a child 

relocates out-of-state with the other parent, even if a court 

order allows for visitation during summer or winter vacations, 

travel expenses make regular continued contact with the child 

quite difficult, if not impossible, for the great majority of 

Hawaiʻi parents. A proposed out-of-state relocation with a child 

can therefore significantly affect a parent’s substantive 

liberty interest in the care, custody, and control of a child. 

Whether or not to allow relocation, however, must be based on a

determination of the child’s best interests, which includes a 

child’s right to parental contact. 

Based upon the important interests involved, for the 

reasons discussed below, the ICA majority did not err by holding 
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that the family court abused its discretion in denying Father’s 

request for a continuance to seek the assistance of an attorney.

Father not only had English language difficulties, but was not 

able to effectively exercise his statutory right to crossexamine the CIU social worker on the detailed CIU Report, which 

had been prepared only one week before trial, and may not have 

been received by Father until the day of trial. 

On the other hand, with respect to the second question on 

certiorari, the family court did not abuse its discretion in 

considering the CIU Report. Family courts should consider CIU 

or any other available family court social worker reports in 

making these difficult decisions regarding whether or not to 

allow relocation. Family courts also have the discretion to 

appoint guardians ad litem for children in relocation cases 

pursuant to HRS § 571-46(a)(8) (2006 & Supp. 2013). 

In summary, we affirm the ICA’s February 8, 2018 Amended 

Judgment on Appeal remanding this case to the family court for 

further proceedings. The family court is to conduct further 

proceedings consistent with this opinion.

II. Background

A. Factual background and prior divorce proceedings

Father and Mother were both born in the Philippines.

Father moved to Hawaiʻi in 1997. Father met Mother in the 
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Philippines in 2007 while vacationing there, and Mother became 

pregnant. After Father returned to Hawaiʻi, he petitioned for 

Mother to come as his fiancée. Mother gave birth to their son 

in the Philippines in February 2008 (“Son”), then moved to 

Hawaiʻi in 2009. Father and Mother were married in May 2009, and 

they had another child, a daughter, born in January 2012

(“Daughter”).

Several weeks after Daughter’s birth, Mother and Daughter 

traveled to the Philippines for Daughter’s baptism. Father

arrived later. Due to marital issues, Father returned to Hawaiʻi

alone in March 2012 to return to work, and Mother and Daughter 

returned in April.

Through an attorney, Father filed for divorce on May 11, 

2012. At the time, he was employed as a housekeeper at the 

Sheraton Waikīkī Hotel. Mother was employed as a certified 

nurse’s aide at a Hawaiʻi Kai retirement community and as a 

cashier at Times Supermarket in Kaimukī.

Sometime thereafter, Mother moved into the Pauoa home of a 

married couple to serve as caretaker for the wife’s mother. The 

wife, L.C., worked as a legal assistant and the husband, M.C., 

was a retired Honolulu Police Department Lieutenant. 

At a hearing on August 22, 2012, Father and Mother, through 

their attorneys, placed their agreements regarding divorce terms 
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on the record. With respect to the children, Father and Mother 

agreed to joint legal and joint physical custody. They also 

orally agreed that neither party could leave Hawaiʻi with the 

children without written consent of the parties or a court order. 

The October 25, 2012 Decree Granting Absolute Divorce and 

Awarding Child Custody (“Divorce Decree”) reflected the 

agreement for joint legal and physical custody. With respect to 

removal of the children from Hawaiʻi, the Divorce Decree provided,

“The parties shall provide the other party sixty (60) days 

written notice prior to removing the minor children outside the 

City and County of Honolulu or relocating the minor children to 

another state. If the other party consents then that party 

shall provide written approval allowing the removal of the minor 

children.”

By the date of the October 25, 2012 Divorce Decree, Mother 

had met a nurse at Tripler Army Medical Center, with whom she 

entered into a relationship (“Boyfriend,” “Fiancé,” or 

“Stepfather”). After Boyfriend’s discharge from the Army, he 

relocated to Durham, North Carolina. He and Mother were married 

there in April 2016.

After the Divorce Decree, Father filed a pro se motion on 

March 14, 2013, requesting that child exchanges occur at a 

police station. This motion was orally denied at a hearing on 
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June 19, 2013. On June 28, 2013, Mother filed a motion 

requesting that the court authorize Boyfriend and the couple 

with whom she lived to conduct child exchanges with Father when 

Mother was working and to order Father to communicate with her 

regarding Son’s immigration application. This motion was 

granted over Father’s opposition.

More than two years later, on November 10, 2015, Father 

filed a motion regarding the children’s doctors and medical and 

immigration expenses, which the parties resolved at the December 

16, 2015 hearing, with Mother represented by counsel; as part of 

this order, Father and Mother both agreed to attend parenting 

counseling.

Although Father had been represented by an attorney in the 

divorce, in the post-divorce hearings, he appeared pro se each 

time. 

B. Subject custody/relocation proceedings

On February 1, 2016, Mother filed a motion for post-decree 

relief requesting that she be granted sole physical custody of 

Son and Daughter, then about eight and four years old, subject 

to Father’s reasonable visitation rights. Mother’s motion 

asserted that a change in custody was appropriate because she 

was “planning on relocating to another state and believe[d] that 

it [was] in the children’s best interest to reside with her.”
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In her declaration, Mother explained that she intended to 

relocate to Durham, North Carolina with her children, where she 

would live with Boyfriend, who was by then her Fiancé, and her 

parents (the children’s maternal grandparents). Mother 

explained that Fiancé had already relocated to North Carolina to 

start a new career, and had secured temporary housing for 

himself, Mother, the children, and Mother’s parents. 

Mother advanced several reasons as to why she believed that 

the children’s relocation to Durham was in their best interests. 

She averred that the intended neighborhood of relocation was 

safe, and that the area provided the children with opportunities 

to attend top-rated elementary schools and participate in 

excellent extracurricular activities. Additionally, Mother 

stated that her parents and Fiancé’s extended family, who also 

lived in the Durham area, would be able to help raise the 

children and support Mother. Lastly, Mother contended that 

Father had been inconsistent in caring for the children, that he 

did not place the children’s needs first, and that if the 

children were not permitted to relocate with her, Father would 

“continue to alienate [Mother] and cut off or minimize any 

contact” that she would be able to have with her children. 

Mother asserted that if the children were allowed to relocate 

with her, she would ensure they maintained a relationship with 
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Father by having regular contact with him, and by allowing them 

to visit Father during their school breaks. 

Proceeding pro se, Father filed a response to Mother’s 

motion for post-decree relief on February 18, 2016. Father 

argued that relocation to Durham would not be in the children’s 

best interests because (1) Mother’s relationship status and 

living situation in Durham would be unstable, as Fiancé could 

leave her at any time; (2) Father did not trust that Fiancé 

would care for his children and that they would be safe in his 

care; and (3) the children already had an established network of 

family support in Hawaiʻi, where they had developed positive 

relationships with their paternal cousins and aunt. Father also 

asserted that Mother did not have proper parenting skills, and 

that she had raised the children with improper morals by 

encouraging them to damage Father’s property and to misbehave 

towards others.

The family court1 held an initial hearing on Mother’s motion 

for post-decree relief on March 16, 2016. Mother was 

represented by two attorneys, and Father appeared pro se. 

Mother’s counsel clarified that she only sought sole physical 

 

1 The Honorable Lanson K. Kupau presided over the hearings held on March 

16, 2016; March 30, 2016; and June 8, 2016. 
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custody, and was not seeking to set aside joint legal custody. 

At the hearing, the family court stated it was unable to 

determine whether relocation to Durham was in the children’s 

best interests based on the information in the file, and opined

that a custody evaluator or fact finder would be able to provide 

the family court with information to render an informed decision. 

The parties then agreed to the appointment of a custody 

evaluator or fact finder, and they agreed to split the costs.

When the family court tried to ascertain whether the 

parties preferred a custody evaluator or a fact finder and who

the parties wanted to serve in either capacity, Father requested 

the assistance of a Tagalog interpreter to ensure that he could 

make an informed decision. In light of Father’s request for an 

interpreter, the family court continued the hearing on Mother’s 

motion for post-decree relief to March 30, 2016.

On March 22, 2016, Father filed a second response to 

Mother’s motion for post-decree relief, stating he no longer 

desired to split the costs of a custody evaluator. He asserted 

that an investigation was not necessary, and that if Mother 

wanted an investigation, she should bear the costs. He also 

expressed his opinion that Mother’s request was a waste of time 

and that it should be dismissed.
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At a further hearing on March 30, 2016, Mother was 

represented by counsel, Father was again pro se, and a Tagalog 

interpreter was present for Father. At the hearing, Father 

reiterated that he did not want to bear the costs of a fact 

finder. After some discussion, the parties ultimately agreed to 

the appointment of a fact finder and that Mother would pay for 

his services. The family court ordered that the hearing on 

Mother’s motion for post-decree relief be continued to July 6, 

2016 to afford the parties a sufficient opportunity to receive 

and review the fact finder’s report and resolve the matter.

On May 25, 2016, however, Mother, now also proceeding pro

se, filed an ex parte motion and declaration to advance the 

hearing on her motion for post-decree relief. Mother requested 

that the hearing be advanced because she decided not to proceed 

with a fact finder because the fees were much greater than she 

had anticipated and she needed that money to enroll Son in a 

private school in North Carolina to assist in his academic 

adjustment. The family court2 approved Mother’s motion to 

advance and scheduled a hearing for June 8, 2016.

 

2 The Honorable Matthew J. Viola granted Mother’s ex parte motion to 

advance the hearing on her motion for post-decree relief. 
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On June 8, 2016, Father and Mother both appeared pro se. A

Tagalog interpreter again appeared to assist Father. Mother 

reiterated that she did not want to proceed with a fact finder 

because the expenses were more than she had anticipated and that 

she believed the money should be used to enroll Son in a private 

school. The family court determined that it was unable to rule 

upon Mother’s motion for post-decree relief and ordered that the 

case be set for trial on July 8, 2016. Specifically, the 

following exchange took place: 

THE COURT: Because you guys have changed basically what 

you had agreed to do, and -- which is fine. I mean, I 

understand your -- your situation. But I’m unable to have 

the hearing today. 

So what I’m going to do is you guys are going to have 

to go to trial on July 8th, 2016, at 8:30 in the morning. 

. . . . 

[Y]ou guys have to . . . come back here for trial on July 

8th at 8:30. 

All witness and exhibit lists need to be filed and 

exchanged with the parties by July 1st, 2016. 

And then we’ll -- I’ll give you a half-day trial, 

from 8:30 to 12 o’clock, to present whatever witnesses you 

have and evidence you have to either support your request 

to relocate or to challenge the request to relocate. Okay? 

Do you guys understand that? 

. . . . 

[MOTHER]: Actually, I actually prepared the exhibits, but 

then if you want to (indiscernible) for the trial, then --

THE COURT: Because I -- I want you guys to have more time 

than you guys are going to have just in a -- a short 

hearing today, ‘cause this is a very important request. So 

I’m going to set it for trial and give you half a day, just 

you guys, to present your case so that I can have more time 

to go and consider everything. Okay? 

Okay. Any questions, sir? 

[FATHER]: No, Your Honor.
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THE COURT: And then [an] interpreter will be ordered for 

that day. 

On June 8, 2016, the family court also ordered the parties 

to appear before a family court officer on June 20, 2016 for a 

quick custody study, to exchange and submit all witness lists 

and exhibits by July 1, 2016, and then set an “extended hearing”

for July 8, 2016 at 8:30 a.m.3 On June 14, 2016, however, the 

family court set aside its June 8, 2016 order and instead 

referred the parties to the family court’s Custody Investigation 

Unit for a regular custody investigation.

4 The parties were also 

ordered to appear for “an extended hearing” on Mother’s motion 

for post-decree relief and “for the Return on [CIU] 

investigation” on September 30, 2016.

On September 22, 2016, Father submitted a detailed, 

notarized letter addressed to Judge Kupau, who had been 

presiding over Mother’s post-decree motion, expressing serious 

concerns with what he perceived to be the antagonistic attitude 

toward him by the CIU social worker who had come to conduct the 

 

3 The family court referred to this as a “trial” during the hearing, but 

the order used the term “extended hearing.”

4 This investigation differs from the quick custody study previously 

ordered, which does not involve site visits and interviews with various other 

persons that may be able to provide information pertinent to a custody report. 
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home visit, and also expressing why he thought the children 

should not be relocated to North Carolina. It appears the CIU 

social worker completed the twenty-eight page, single-spaced CIU

Report on or about September 23, 2016. The record does not 

reflect the mailing of the CIU Report to the parties.5 

On September 30, 2016, the parties appeared before the 

family court.

6 At the outset, the family court indicated that 

“this hearing, this trial” would have to be completed by noon. 

The proceedings began at 8:34 a.m. and concluded at 11:44 a.m., 

with one fourteen minute recess. Both Mother and Father 

proceeded pro se, and a Tagalog interpreter was present to 

assist Father.

Before opening statements, the family court asked Mother 

and Father to clarify the identities of their witnesses and 

testimonies they expected from each. Mother first indicated she 

was going to call M.C. and L.C. to testify regarding their past 

 

5 In contrast, the minutes reflect that a court clerk mailed the June 13, 

2016 order, which was not entered at the end of a court proceeding, to the 

parties. The CIU Report itself is sealed due to its confidentiality pursuant 

to HRS § 571-84(c) (Supp. 2001), which provides that “[n]o information 

obtained or social records prepared in the discharge of official duty by an 

employee of the court shall be disclosed directly or indirectly to anyone 

other than the judge or others entitled under this chapter to receive the 

information, unless and until otherwise ordered by the judge.”

6 The Honorable William J. Nagle presided over the trial and the motion 

for reconsideration.
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encounters with Father, their relationship with the children, 

their impressions of Mother’s husband, and why they believed it 

was in the children’s best interests to move to North Carolina. 

The family court indicated that Mother could only call either 

M.C. or L.C. as a witness. Mother also stated she would also be 

calling her mother as a witness to testify regarding the Son and 

Father in the Philippines, Father’s behavior when picking up Son, 

and the help she would provide when moving to North Carolina. 

The family court then stated that what happened in the 

Philippines was not relevant to the trial issue of whether 

Mother should be granted sole legal7 and physical custody of the 

children and the “other issue . . . [of] whether [Mother] should 

be allowed to relocate with the children to North Carolina.”

Father next explained he had brought his sister, his father, 

and a family friend to testify on his behalf and the natures of 

their expected testimonies. Regarding the proposed testimony of 

the sister and the father, the family court indicated that 

Father would only be able to call one of them to testify about 

the caretaking of the children because their testimony would be 

cumulative.

 

7 Mother had not requested a change in Father’s joint legal custody.
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The family court also stated that “the fact that [Mother 

and Father had] listed witnesses to testify in addition to 

[themselves] is going to put a strain on our ability to get this 

done this morning[,]” and indicated that if the parties were 

going to call witnesses other than themselves, they needed to 

get to the point. The family court additionally indicated it 

was not interested in parties’ “past disputes and quarrels” as 

it had reviewed the court file. The family court then advised 

the parties that “if you’re going to call people, get to the 

point. And if you’re going to cross-examine people, ask your 

questions. Be sure you know what you’re asking, and don’t get 

into arguments in front of the Court.” 

The family court also acknowledged that both parties had 

submitted numerous exhibits to be received into evidence and 

addressed which ones were going to be admitted. The family 

court then asked if either party wanted to make an opening 

statement.

Father’s opening statement consisted of the following:

[FATHER]: Your Honor -- (Through interpreter) -- it’s this 

-- this (indiscernible). It’s very hurting to me to --

seeing as my children were still young. It’s been seven 

years that they’ve been out from me. So they remove her –

[Daughter] (indiscernible). It’s -- it really hurts me. 

It’s your decision. It’s up to you, Your Honor, if you --

if you allow them to be removed away from me, although it 

hurts me very much. I -- I wish that they could stay with 

me, because I love them very much. They are my life. So 

(indiscernible) they did to me, I am a U.S. citizen. I also 

stay with my parents. It is up to you, Judge. It’s your 

decision. Please don’t allow them to be removed from me. 
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(In English) That’s all, Your Honor. 

(Through interpreter) That’s all I can say.

Mother then presented a much more lengthy opening statement in 

English. She stated she was not seeking to change Father’s 

joint legal custody of the children.

Mother then called three witnesses to testify on her 

behalf: (1) L.C., the friend with whom she had resided, for 

whose mother she had served as caretaker; (2) the children’s 

maternal grandmother; and (3) M.C., the retired HPD Lieutenant,

with whom Mother also resided. Although the family court had 

indicated earlier that Mother could only call either L.C. or M.C. 

as a witness, at the conclusion of the grandmother’s testimony, 

the family court asked Mother if she wanted to call M.C., who 

was then also allowed to testify. Mother also testified on her 

own behalf.

Father was provided opportunities to cross-examine each of 

Mother’s witnesses, including Mother herself; he attempted 

cross-examination of L.C. and M.C. only. While Father was able 

to ask L.C. and M.C. to clarify certain parts of their testimony, 

Father had to be reminded several times that he was only 

permitted to ask questions on cross-examination, and was not 

allowed to argue with the witnesses. For example, the following 

exchange took place on cross-examination of L.C.: 
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BY [FATHER]:

Q. [L.C.], you just said that it would be 

(indiscernible) I’m not good father in terms of educating 

and intensive (indiscernible) for my kids. I believe that 

I did my best, sending them in their doctors --

THE COURT: Excuse me. Do you have any questions for her?

Q. (BY [FATHER]) [L.C.], how did you said that -- you said 

that I am not being a good father to my kids in terms of 

their health or something or their school, in their school, 

sending them in [] School? 

A. Well, I understand from your son, [Son], who is . . . 

eight years old, that you do his homework for him, and you 

provide him his answers because you felt that he was too 

lazy to do his homework, and he was frustrated about doing 

his homework. I don’t think that’s a good thing for a 

father to do because the son -- your son will never learn 

anything in school. 

Q. I’m -- I’m trying to encourage him to do his homework 

or to do his classwork. 

THE COURT: [Father], not time to argue with the witness. 

If you have a question to ask her, you should ask her now. 

[FATHER]: (Through interpreter) Only the question -- only 

statements that (indiscernible) make? 

(In English) Only the statement, Your Honor, or --

THE COURT: This is not the time for you to make 

statements. If you have questions to ask [L.C.]--

[FATHER]: About what she said?

THE COURT: About her testimony, yeah. 

[FATHER]: That’s all, Your Honor. 

Similarly, on M.C.’s cross-examination, the following 

exchange took place:

BY [FATHER]:

Q. Sir, [M.C.] Lieutenant, what did you said, N.C., 

North Carolina, is better than Hawaii, considering now 

there’s a lot of crime happening there, considering Hawaii 

is very peaceful, and there’s no history of anything 

violence, except the last war, which is World War II, which 

has been long, long time [sic]? 

A. [Father], for your information, working -- working 

the streets of Kalihi for 29 years and the surrounding 
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district of Kaneohe, our town is not as peaceful as you 

might imagine. I’ve been trained in riot control, and we 

have prevented a few riots, including a few at a bar . . . 

many times. So the actions that you’ve seen in Charlotte, 

North Carolina, are typical of a . . . metropolitan area. 

We’re no different.

The metropolitan [area] here . . . has a permanent 

population of 956,000 people. Of that, the average . . . 

people who are committing crimes is 3 percent. Well, 

that’s over 30,000 who are causing trouble in our city. So 

we don’t live in a real peaceful environment[.]

Q. And then you said that the kids not going have a hard 

time going back and forth every week. Have you ever think 

that it’s going to be hard for them not to see me, if 

you’re thinking the -- their best interest, to 

(indiscernible) me as their father, not see me every week 

(indiscernible) right now? 

A. Considering my observations of their reactions to you, 

oh, I certainly think they’ll be much better off, 

especially as a baby, when your daughter, [Daughter], used 

to kick and scream when you’d take her away from her mother 

or me or my wife during the twice weekly exchanges. 

Q. For what I see, [M.C.], my daughter always excited to 

see me, and my son.

THE COURT: Excuse me, [Father]. This is the time for 

questions. Okay? 

[FATHER]: That’s all, Your Honor. 

Then, during Mother’s direct testimony, the following 

exchange took place:

THE COURT: Now, are you asking the Court, as far as joint 

legal custody is concerned, to give you any tie-breaking 

authority if you move to North Carolina because you will be 

there with the kids? 

[MOTHER]: Yes, Your Honor. That’s what was recommended in 

the custodial evaluator’s report. I would love to have the 

tie-breaking, Your Honor. 

THE COURT: Okay. I just wanted to clarify that.

After Mother finished presenting her evidence, the family 

court informed the parties that it had asked the CIU social 

worker to come up to court to be sworn as the court’s witness 
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and to authenticate her CIU Report. The family court observed 

that the CIU Report “does not appear to have been filed in 

court,” and that the family court wanted to provide the parties 

an opportunity to ask the social worker any questions they had 

regarding the CIU Report. Upon being informed that the CIU 

social worker was being called to testify, Father then orally 

requested a continuance to consult an attorney:

[FATHER]: Can I say something, Your Honor? I would like 

to practice my right to -- to see a -- a lawyer.

THE COURT: See a lawyer now?

[FATHER]: I would like to extend this hearing.

THE INTERPRETER: Asking for a continuance because he wants 

to consult a lawyer.

Mother objected to Father’s request for continuance, 

stating that she intended to enroll Son in school in North 

Carolina and the hearing on her motion for post-decree relief 

had already been continued several times. The family court then 

asked Father why he had not retained an attorney up until this 

point. Father responded:

Your Honor, I didn’t know is going -- this going to be the 

setup, ‘cause normally when we go to . . . court, it’s 

normally asking the judge. I didn’t know about . . . 

cross-examination, something like that. I have no idea. 

So I would like to practice my right to hire a lawyer, to 

see a lawyer (indiscernible), and extend this hearing, 

‘cause I . . . have no idea about this . . . procedure.

The family court denied Father’s motion for a continuance in the 

following exchange:
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THE COURT: Okay. [Father], the problem I’m having is that 

this motion was filed back . . . in February. You folks 

have had numerous hearings before . . . Judge Kupau. Since 

that time, you’ve been to court, you know, a fair amount. 

I guess . . . I don’t understand why you’ve had in excess 

of six months to hire an attorney, and now we’re halfway 

through the trial, and you want to continue the matter to 

hire an attorney.

[FATHER]: Like, again, like I said, Your Honor, I didn’t 

know this -- that this the first time I been here in this 

kind of setup of -- in the court. I normally go to a --

they get a judge and two of us. 

THE COURT: Uh-huh. 

[FATHER]: That’s -- that’s how it is. But crossexamination, I have no idea. That’s why I cannot do it. 

So I would like to say -- I would like to practice my right 

to . . . see a lawyer so I can also (indiscernible) for me 

to deliver my –- my . . . 

THE COURT: Okay. [Father], the Court’s going to deny your 

motion for a continuance. I think it’s too late. We’re 

already in the trial. That’s something that if you 

were . . . going to, you should have hired an attorney 

early on. So I’m going to deny your motion. It’s too late. 

The family court then called the CIU social worker to the 

stand. The social worker briefly testified that she had 

performed a custody evaluation for the present case, that she 

had prepared the CIU Report, that the signature on a document 

before her was her signature, that she had made certain 

recommendations to the court as a result of the investigation, 

and that her recommendations had not changed from the September 

23, 2016 date of the Report.

8 

 

8 As indicated later, the family court considered the CIU Report, which 

was not marked as an exhibit and was not received in evidence. The CIU 

(continued. . .)
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Both parties were then given opportunities for crossexamination. Mother indicated she had no questions. Father 

again experienced difficulty and again requested a continuance 

so that he could consult a lawyer, which the family court 

denied: 

BY [FATHER]:

Q. In her report, you never said that I do have a onebedroom house and all that . . . safety first, which is I 

-- I mention it -- mention to you four times. If you 

remember, when you come to my house, my main goal for 

my . . . children is . . . their safety. But . . . you 

never put anything about that, all that safety thing that I 

show it to you? 

A. I’m sorry. I don’t understand the question.

THE COURT: [Father], it would help if you’d just ask a 

very simple question like, do you remember the time you 

visited my house?

[FATHER]: Like again -- like I said, Your Honor, I would 

like to see a lawyer because I would like to practice my 

right to -- ‘cause I don’t know -- I don’t know how to do 

this thing.

THE COURT: Well, it’s not hard, [Father]. If you’re 

asking her about what she did or didn’t see on a visit to 

your house, all you have to do is ask her, do you remember 

-- Do you remember visiting [Father’s] house? 

THE WITNESS: Yes. 

THE COURT: What did the house look like? 

THE WITNESS: It was a one-bedroom, one-bath, with a living 

room into an open kitchen area apartment.

 

(continued. . .)

social worker never testified as to the contents of the Report or her 

recommendations, except in response to the few questions asked by Father. 

The rules of evidence should be followed. 
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[FATHER]: In her report, she didn’t write down what inside 

of the refrigerator, things like that, what . . . foods 

that my children eat, and then what (indiscernible) my 

parent’s house, and what the childrens do . . . there. So 

to me --

THE COURT: Okay. 

[FATHER]: –- this woman is incomplete.

THE COURT: All right.

[FATHER]: (Indiscernible.)

THE COURT: Do you agree that your report is incomplete in 

any way?

THE WITNESS: No. 

THE COURT: Okay. 

[FATHER]: Your Honor, again, I would like to practice my 

right to hire a lawyer, to . . . 

THE COURT: [Father], again, we’re in the middle of the 

trial. If you wanted to hire a lawyer, this was something 

you should have done way before this. 

Do you have any other questions for [the social worker]? 

Because if you don’t, I’m going to release her. 

[FATHER]: That’s all I want to ask (indiscernible).

After the CIU social worker left the stand, Father was 

given an opportunity to present his evidence. Father elicited 

testimony from three witnesses. Father also testified. For the 

most part, Father testified in English, on his own; he relied on 

the Tagalog interpreter to clarify that he believed his children 

would experience anxiety if they relocated to Durham. As he 

testified, Father went through his exhibits, explained their 

contents, and explained how each exhibit supported that moving 

to Durham was not in the children’s best interests. 
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Mother and Father then gave their closing arguments. 

Father’s closing argument was as follows:

[FATHER]: Thank you, Your Honor. It’s -- for me, it’s more 

about the stability, that the kids will be there. Over 

here in Hawaii, they are more stable. They already 

establish stability here. School, family, medical. 

Everything’s -- everything that already is stable. Moving 

-- moving her in North Carolina is (indiscernible) 

especially –-

THE COURT: It’s what? 

[FATHER]: Anxiety. (Through interpreter) Anxiety. (In 

English) Anxiety. (Through interpreter) Creates anxiety.

THE COURT: Anxiety for? 

[FATHER]: For them, especially they’re too young. I’ve 

been taking care of them -- my -- to them, except to my son, 

who has just came here, since his (sic) birth. So if 

they’re going to be remove, Your Honor, that relationship 

is going to be different because they -- weekly we -- we 

always see each other, so it’s going to be hard for both of 

us, for the -- for the -- for me and for my both children, 

that they enjoying, also, their family -- extended family 

here, which is their cousins, their uncle, the auntie, the 

grandparents. And, also, Your Honor, I've been a good 

father to them. I would like to continue that. They are my 

life. I will do more best for my kids. Last, Your Honor, I 

never do anything bad or a crime. I’m a good citizen. I 

deserve to have them. They are my life. They are my 

happiness. And then, also, Your Honor, it’s not fair to me, 

as the petitioner or plaintiff in the very beginning, that 

I -- I going to -- I going to have only two months during 

the summer and from the – for . . . [MOTHER], having school 

year the whole year, which is ten months. Just change the -

- the -- change the -- the situation. Have her the 

summertime, and I get the school year. Do you think it’s 

going to be fair? 

THE COURT: You should have asked that question of [MOTHER]

on cross-examination. Okay. Anything else, [FATHER]? 

[FATHER]: That’s all, Your Honor.

THE COURT: Okay. Thank you very much.

At the conclusion of his closing argument, the following 

further exchange took place:
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THE COURT: Okay. Thank you very much. The Court at this 

time is going to take the matter under advisement. I’m 

going to look over the exhibits that you folks have 

provided, and I’ll render a decision within the next week. 

Okay? I want to thank both [FATHER] and [MOTHER] . . . .

Thank you very much for your presentation and for your very 

professional -- your very professional demeanor. I 

appreciate it. 

[FATHER]: I have a question, Your Honor. I’m sorry about 

every -- if this -- like I said in the very beginning, this 

is my first time to be in this kind of setup of -- in the 

court, ‘cause normally the judge, me, and (indiscernible) 

or the lawyers. I don’t know anything about crossexamination. That’s why I just like, you know, what to do 

(indiscernible), I ask him many times. My question is, Your 

Honor, ‘cause I feel that I need a lawyer, but you -- you 

deny it, just in case that you favor to her, I can always 

appeal? I practice my rights to -- to fight for my kids? 

THE COURT: [FATHER], you can retain the services of an 

attorney anytime. But you can’t do it in the middle of 

trial and expect the Court to continue, especially after 

[MOTHER] has put on her evidence already. So if you want to 

go out and retain an attorney to prosecute an appeal after 

the Court’s decision, that’s entirely up to you. 

[FATHER]: I just ask (indiscernible). 

THE COURT: As the Court, I can’t give you legal advice. 

You need to retain your own attorney to do that. 

[FATHER]: Yeah, I’m sorry about that, ‘cause I didn’t know 

this going to be the setup. That’s why I don't know that --

you know, how to do this. If I -- if I knew it going to be 

like this, I probably hire a attorney, ‘cause just 

considering that I have a interpreter, I don’t know what –

THE COURT: Okay. 

Although the family court had stated it would rule within 

the next week, the record does not reflect a ruling until almost 

two months after the September 30, 2016 trial. On November 23, 

2016, the family court filed an “Order Granting Defendant’s 
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Motion For Post-Decree Relief Filed February 1, 2016” (“the 

Order”).

9 In the Order, the family court issued its factual 

findings based upon the CIU Report and the evidence presented at 

trial, and ruled with respect to legal and physical custody as 

follows: 

2. LEGAL CUSTODY. The Court has considered the 

criteria set forth in [HRS] §571-46(b) . . . with respect 

to each parent’s request that the Court award them sole 

legal custody of the minor children. Particularly, the 

Court focused on subsections (3) through (9), (12), (15)10

 

9 As argued by Father in his motion for reconsideration, despite stating 

to the parties at the beginning of trial that it was not interested in the 

parties’ past disputes and quarrels, apparently based on its review of the 

record, the family court discussed the previous post-decree motions in some 

detail, drawing negative inferences against Father, such as “Father’s written 

response to Mother’s Motion [to allow L.C. and M.C. to pick up the children] 

demonstrates an intense antipathy for, and hostility to, Mother because of 

events which occurred during their marriage; and a stated willingness to 

involve the minor children in disputes with Mother.” In addition, as argued 

by Father in his motion for reconsideration, the family court might not have 

had been fully apprised regarding the details regarding this motion. In 

addition, however, the response negatively referred to by the family court 

was filed on July 18, 2013, within nine months after the divorce decree, and 

this matter took place more than three years later. 

10 HRS § 571-46(b)(3) through (9), (12), and (15) provide: 

(b) In determining what constitutes the best interest of 

the child under this section, the court shall consider, but 

not be limited to, the following:

. . .

(3) The overall quality of the parent-child 

relationship;

(4) The history of caregiving or parenting by each 

parent prior and subsequent to a marital or other 

type of separation;

(5) Each parent’s cooperation in developing and 

implementing a plan to meet the child’s ongoing 

needs, interests, and schedule; provided that this 

factor shall not be considered in any case where the 

(continued. . .)
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and (16)11 as indicative of the best interests of the minor 

children . . . . The Court finds that Mother has carried 

her burden of proof, as set forth below. 

As between the two parents, it is evident that Mother 

has been the more consistent parent in providing quality to 

her relationship with the children since the divorce. She 

has been the more attentive to the physical, emotional, 

safety and educational needs of the children. Mother has 

consistently demonstrated that she can separate the 

children’s needs from her own, and place the best interests 

of the children over her own interests. 

The Court also finds that Mother has demonstrated the 

occurrence of a change in circumstances necessitating a 

change in legal custody principally due to Father’s 

inability or unwillingness to place the best interests of 

the children above his own disagreements and hostility 

towards Mother. [fn2 See § 571-46(b)(12), HRS.] Independent 

of any relocation decision, it is obvious that joint legal 

custody has not produced the desired benefits for the minor 

children, because of Father’s behaviors. [fn3 The Divorce 

Decree requires that the parties attempt mediation of their 

disputes before filing motions in court. To date, there is 

 

(continued. . .)

court has determined that family violence has been 

committed by a parent;

(6) The physical health needs of the child;

(7) The emotional needs of the child;

(8) The safety needs of the child;

(9) The educational needs of the child;

. . .

(12) Each parent’s actions demonstrating that they 

separate the child’s needs from the parent’s needs;

. . .

(15) The areas and levels of conflict present 

within the family; 

. . . .

11 HRS § 571-46(b)(16) requires consideration of “[a] parent’s prior 

wilful misuse of the protection from abuse process under chapter 586 to 

gain a tactical advantage in any proceeding involving the custody 

determination of a minor” in the best interests analysis. 

Despite the family court’s reliance on HRS § 571-46(b)(16), there 

is no record of any HRS Chapter 586 proceedings involving Father and 

Mother.
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no indication that the parties have attempted mediation.12] 

Father has placed the minor children at the center of his 

disputes with Mother; first, by calling HPD repeatedly at 

the pick up and drop off locations to document his 

frivolous allegations against Mother for custodial 

interference; and second, by refusing to communicate with 

Mother to resolve relatively insignificant issues relating 

to the pickup and drop off schedule. Moreover, Father’s 

trial testimony demonstrates that he has no intention of 

cooperating and coparenting with Mother in the future; his 

fixation with “fighting for [his] children” with Mother 

instead of attempting to work with her for the children’s 

benefit, demonstrates misplaced priorities. From the postDecree history of the parents, the Court has no factual 

basis for inferring that Father’s hostility towards Mother 

will lessen with time or distance. Mother has also carried 

her burden of showing that she has attempted to work with 

Father for the benefit of the children, albeit 

unsuccessfully. 

For these reasons, the Court finds that the best 

interests of the minor children require a change in legal 

custody from joint legal custody to sole legal custody in 

favor of Mother. The Court further finds that the best 

interests of the children require that Mother be tasked the 

obligation to inform and confer with Father concerning the 

major issues of the minor children’s lives. Father shall 

also have equal access to the children’s medical and school 

records, as well as their extracurricular activities. If 

the parties cannot arrive at a consensus decision on the 

major issues of the children’s lives, then Mother shall 

make the decision.[13]

3. PHYSICAL CUSTODY/RELOCATION. The Court finds that 

Mother has carried her burden of demonstrating that the 

best interests of the children support her request to 

relocate her residence with the children from Honolulu to 

 

12 Father’s alleged failure to refer matters to mediation was not raised 

by Mother and was never discussed during the trial, and as also argued by 

Father in his motion for reconsideration, may have been factually incorrect.

13 Mother’s motion was based on her relocation request. In addition, as 

noted, Mother repeatedly stated she was not requesting a change in legal 

custody. Upon questioning by the family court, Mother indicated she wanted 

“tie-breaking” authority with respect to legal custody. Yet, this portion of 

the family court’s ruling, which changes legal custody from joint to solely 

to Mother, is not conditioned on any relocation, and orders a change not 

requested by Mother.
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Durham, North Carolina, forthwith.[14] The Court also finds 

that Mother has carried her burden of demonstrating that 

the best interests of the children require an award of 

physical custody of the minor children to Mother. 

Mother has demonstrated that the children’s 

opportunities for education, medical care, employment and 

cultural growth in Durham, NC are better than Honolulu. 

Because the maternal grandparents will accompany Mother to 

Durham, Mother has shown that she has support for 

supervision, direction and care for the children, in 

addition to her husband. Mother has also shown that her 

opportunities for employment in the Durham area are more 

numerous and advantageous to her, than those in Honolulu. 

The Court is not persuaded that the children should 

remain in Honolulu with Father. First, as noted above, 

Father’s evident and continuing hostility to Mother, even 

after the divorce, and his willingness to place the 

children at the center of their disputes, cannot be in the 

children’s best interests. Moreover, based on his behavior 

to date, the Court finds that Father is unable to place the 

children’s best interests ahead of his own. Second, neither 

Father nor any of his witnesses at trial articulated any 

compelling reasons for the children to remain in Honolulu. 

Finally, Mother’s plan for relocation adequately provides 

time for Father to visit with and enjoy time with the 

children. 

In order to prevail on her request to change physical 

custody and to relocate with the minor children to Durham, 

North Carolina, Mother must demonstrate that: (1) “there 

occurred such a change in circumstances that the 

replacement of custody would be in for the best interests 

of the children”, Dascoscos v. Dascoscos, 38 Haw. Terr.265, 

266 (1948); and (2) that relocation of the minor children 

to Durham, North Carolina would be in the best interests of 

the children as enumerated in §571-46(b), HRS. Mother must 

demonstrate these elements to a preponderance of evidence. 

Mother’s proposed relocation of the minor children to 

Durham, North Carolina is a change in circumstances, the 

occurrence of which would dictate a change in physical 

custody, in the best interests of the children. Dascoscos, 

supra; quoted in Waldecker, supra at p. 22. The Divorce 

Decree clearly contemplated that the parties would share 

equal time with the minor children while they resided on 

the island of Oahu. While the Decree does refer to the 

possibility of relocation by one or both parties in §3, the 

provision requires that a relocating party give 60 days 

 

14 Although the Order allows relocation “forthwith,” the record does not 

indicate any ruling on the September 30, 2016 trial until this November 23, 

2016 order. 
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notice of the relocation to the other party, who may then 

consent or object. Nothing in the Decree governs timesharing between the parties in the event that one relocates 

out of the State of Hawaii. 

Based on the evidence at trial and the report of CIU, 

the Court finds that Mother has been the primary caregiver, 

and more consistently supportive parent to the children. 

The Court also finds that Mother has, and is presently able 

to place the interests of the children ahead of her own, 

even while working multiple jobs to provide for them 

financially. No evidence was presented at trial that any 

safety issues will arise if an award of physical custody is 

made to Mother for the relocation. On the other hand, 

Father has failed to show that he has advanced the 

children’s educational opportunities [fn4 [L.C.] testified 

that Father, rather than supervising [Son’s] homework, 

actually did the homework for [Son], which hindered [Son’s] 

efforts at school.] nor has he demonstrated at trial that 

he would be an adequate physical custodian. Based upon 

these findings, the Court awards sole physical custody of 

the minor children to Mother, subject to Father’s rights of 

visitation, as set forth below.

Additionally, in a footnote, the family court indicated

that Father requested a continuance at trial, but that the 

request was denied: 

Father requested a continuance of the trial to retain legal 

counsel after Mother had concluded her presentation of 

evidence in her case in chief. Despite the passage of 7 

months and numerous court hearings since the filing of 

Mother’s Motion, Father had failed to seek or retain legal 

counsel. Father presented no excuse for his failure to 

retain legal counsel in a timely fashion, and the Court 

denied Father’s request for a continuance literally in the 

middle of trial as untimely. 

On December 2, 2016, Father filed a motion for 

reconsideration. In summary, Father argued that his motion 

should be granted because: (1) several of the family court’s 

factual findings were erroneous or based upon incomplete 

information; (2) the evidence, in his view, demonstrated that 

relocation to Durham was not in the children’s best interest; 
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and (3) the family court should have granted his motion for a 

continuance so he could have sought advice from a lawyer.15 

On January 4, 2017, the family court issued a written order 

denying Father’s motion for reconsideration. The family court 

ruled that Father’s motion reiterated arguments he had raised at 

trial and did not present any new evidence and/or arguments that 

could not have been presented at trial.

C. ICA proceedings

On appeal, Father, now represented by counsel, raised two 

points of error. Father argued that the family court abused its 

discretion in denying his motion for a continuance at trial and 

in considering the CIU Report in support of its decision 

granting mother’s motion for post-decree relief. 

Regarding the first point of error, in summary, Father 

argued that the family court abused its discretion in denying 

his motion for a continuance because: (1) a continuance would 

not have resulted in any inconvenience to the family court, the 

parties, or the witnesses; (2) Father had legitimate reasons to 

seek a continuance, given that “[h]e is not a native English 

speaker and had great difficulty communicating as he attempted 

 

15 See also notes 9 & 12, supra.
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cross-examination of the witnesses”; and (3) Father was not at 

fault for waiting to consult a lawyer for several months, as 

Father did not know he would need the assistance of counsel 

until shortly before trial because he was not given a copy of 

the CIU report until, at a maximum, a week before trial.

With respect to his second point of error, Father advanced 

several arguments in support of his position that the family 

court abused its discretion in considering the CIU Report. 

First, Father argued that the CIU report was deficient. Father 

highlighted that the CIU Report only “compared alternatives of 

MOTHER or FATHER having sole physical custody, without taking 

into account that these alternatives mean that MOTHER was 

prepared to abandon the children to FATHER if the motion were 

denied,” and “failed to consider the advantages to the children 

of remaining in a stable and familiar environment in Hawai[ʻ]i 

within the jurisdiction of the Hawai[ʻ]i Family Court.” Father 

also argued that the CIU Report was incomplete because it did 

not sufficiently investigate Stepfather’s background and the 

details of the intended neighborhood of relocation. Father 

further argued that the family court abused its discretion in 

considering the CIU Report because the social worker was not 

qualified to serve as a custody evaluator under HRS § 571-46.4
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(Supp. 2013), and Father did not consent to the social worker’s 

appointment as a custody evaluator.

Mother, acting pro se, responded to each of Father’s points 

of error. Mother first argued that the family court did not 

abuse its discretion in denying Father’s mid-trial motion for a 

continuance. Mother argued that at the June 8, 2016 hearing, 

the family court had informed both of the parties that the next 

proceeding was going to be a trial. Additionally, Mother argued

that at the September 30, 2016 hearing, prior to the parties’ 

opening statements, the family court explained how the trial was 

going to proceed and provided the parties with an opportunity to 

ask questions. Mother contended that the family court correctly 

denied Father’s motion for a continuance, as he had ample 

opportunity to seek counsel and to resolve any questions 

regarding the nature of trial proceedings, but still chose to 

represent himself. 

With respect to the second point of error, Mother contended 

that the family court did not abuse its discretion in 

considering the CIU Report. Mother argued that HRS § 571-

46(a)(4) does not require a parent to consent to an 

investigation or report, and asserted that the CIU social worker

was qualified to serve as a custody evaluator under HRS § 571-

46.4(a) (Supp. 2013). Mother also countered that the social 
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worker sufficiently investigated Stepfather by speaking with him 

over the phone twice and by speaking with his landlord/housemate 

over the phone. Mother concluded that the CIU Report was not 

only complete, but was thorough, accurate, and drafted by a 

qualified individual.

On December 26, 2017, the ICA filed a summary disposition 

order, in which a majority of the ICA panel vacated the family 

court’s orders granting Mother’s motion for post-decree relief 

and denying Father’s motion for reconsideration. DJ v. CJ, 

CAAP-17-0000027, at 1-5 (App. Dec. 26, 2017) (SDO). The ICA 

majority concluded that “the family court abused its discretion 

in denying Father’s request for a continuance to seek the 

assistance of counsel.” DJ, SDO at 5. The ICA majority further 

determined that it need not address Father’s second point of 

error. DJ, SDO at 2 n.1.

Judge Reifurth dissented. DJ, SDO at 6-12 (Reifurth, J., 

dissenting). In his view, the family court did not abuse its 

discretion in denying Father’s request for a continuance. DJ, 

SDO at 6 (Reifurth, J., dissenting). He reasoned that because 

Father had been provided with an interpreter, Mother’s motion 

had been filed more than seven months before the trial, and 

Father was familiar with his right to counsel and the process,

yet chose not to hire an attorney, Father had not exercised due 
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diligence. Accordingly, Judge Reifurth would have ruled that 

father’s substantive parental rights had not been infringed upon 

and the family court did not abuse its discretion in denying 

“Father’s mid-hearing request for a further continuance.” DJ, 

SDO at 10-11 (Reifurth, J., dissenting).

Judge Reifurth also addressed Father’s second point of 

error. DJ, SDO at 11-12 (Reifurth, J., dissenting). He opined 

that Father did not demonstrate that: (1) the CIU Report was 

incomplete in any material sense; (2) the family court’s ability 

to consider the CIU Report was conditioned upon his consent 

thereto; or (3) the family court relied upon the CIU report in 

granting Mother’s motion for post-decree relief. DJ, SDO at 11 

(Reifurth, J., dissenting). Based on the family court’s “broad 

discretion in examining reports concerning a child’s custody,” 

Judge Reifurth opined that the family court did not abuse its 

discretion in considering the CIU Report. DJ, SDO at 11-12 

(Reifurth, J., dissenting). 

On February 8, 2018, the ICA entered its Amended Judgment 

on Appeal.

D. Application for writ of certiorari 

Mother filed a timely application for a writ of certiorari, 

raising two questions: (1) whether the family court abused its 

discretion by denying Father’s request for a continuance to 
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36

obtain legal counsel; and (2) whether the family court 

manifestly abused its discretion by relying upon a CIU Report 

that was alleged to be incomplete and performed without Father’s 

consent.

For the reasons below, the ICA majority did not err in 

ruling that the family court abused its discretion by denying 

Father’s request for continuance to obtain legal counsel. Based 

on its ruling on the first question, the ICA majority did not

address the second question. As the second question on 

certiorari would still be at issue on remand, however, we 

address issues raised therein to provide guidance. Ultimately, 

we affirm the ICA’s Amended Judgment on Appeal, as modified by 

this opinion. 

III. Standards of Review

A. Whether an abuse of discretion occurred

A family court’s decision to grant or deny a motion for a 

continuance is reviewed for an abuse of discretion. Onaka v. 

Onaka, 112 Hawaiʻi 374, 378, 146 P.3d 89, 93 (2006). “It is well 

established that ‘[a]n abuse of discretion occurs if the trial 

court has clearly exceeded the bounds of reason or disregarded 

rules or principles of law or practice to the substantial 

detriment of a party-litigant.’” Id. (brackets in original, 

citation omitted).
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Whether an abuse of discretion occurred is a question of 

law. In re B.G.D., 351 S.W.3d 131, 145 (Tex. Civ. App. 2011). 

Thus, an Intermediate Court of Appeals ruling that an abuse of 

discretion occurred is a question of law reviewed under the 

right/wrong standard of review. 

B. Consideration of evidence

When application of a particular evidentiary rule can yield 

only one correct result, the proper standard for appellate 

review is the right/wrong standard. However, the 

traditional abuse of discretion standard should be applied 

in the case of those rules of evidence that require a 

“judgment call” on the part of the trial court. 

State v. St. Clair, 101 Hawaiʻi 280, 286, 67 P.3d 779, 785 (2003)

(citations omitted).

IV. Discussion

A. The ICA did not err in ruling that the family court abused 

its discretion in denying Father’s motion for a continuance.

At issue is whether the ICA majority erred in ruling that 

the family court abused its discretion in denying Father’s 

request for a continuance, in other words, whether the ICA erred 

in ruling that the family court clearly exceeded the bounds of 

reason or disregarded rules or principles of law or practice to 

the substantial detriment of a party-litigant. As we noted in 

AC v. AC, 134 Hawaiʻi 221, 233, 339 P.3d 719, 731 (2014):

Important constitutional interests provide . . . reason for 

providing parents a full and fair opportunity to present 

their case in custody decisions. Indeed, a parent’s 

right to the “care, custody and control” of his or her 

child is a fundamental liberty interest protected by the 

United States Constitution. Troxel v. Granville, 530 U.S. 
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57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (“[T]he 

interest of parents in the care, custody, and control of 

their children is perhaps the oldest of the fundamental 

liberty interests recognized by this Court.”). This court 

has also recognized that independent of the United States 

Constitution “parents have a substantive liberty interest 

in the care, custody, and control of their children 

protected by the due process clause of article 1, section 5 

of the Hawaiʻi Constitution.[] Parental rights guaranteed 

under the Hawaiʻi Constitution would mean little if parents 

were deprived of the custody of their children without a 

fair hearing.” In re Doe, 99 Hawaiʻi 522, 533, 57 P.3d 447, 

458 (2002).

As reflected in the passage above, it is axiomatic that a

parent’s right to the care, custody, and control of the parent’s 

child is a fundamental liberty interest protected by the United 

States and Hawaiʻi constitutions and entitled to due process 

protection. In a child custody context, we have specifically 

stated that the State may not deprive a parent of the

fundamental liberty interest in the care, custody, and control 

of a child

without providing a fair procedure for the 

deprivation. Furthermore, the Supreme Court has said that 

parental rights cannot be denied without an opportunity for 

them to be heard at a meaningful time and in 

a meaningful manner.

In Re Doe, 108 Hawaiʻi 144, 157, 118 P.3d 54, 67 (2005) (emphasis 

in original). In light of the important constitutional interest

involved, the ICA majority did not err in ruling that the family 

court abused its discretion in denying Father’s oral request for 
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39

a continuance to seek counsel under the circumstances of this 

case.

16

This case involved Mother’s motion to relocate to North 

Carolina with the children and their soon to be step-father, a 

potentially significant deprivation of Father’s fundamental 

liberty interest in the care, custody, and control of his 

children. The reality is that if the request for relocation was 

granted, even with an order allowing visitation during some 

school vacations, Father’s future contact with his children 

would be significantly curtailed, especially due to the high 

cost of travel to and from Hawaiʻi. Based on the possibility of

such a significant curtailment of his fundamental liberty 

interest, Father was entitled not just to his “day in court,” 

 

16 The dissent opines that because the family courts are uniquely 

positioned as triers of fact throughout complicated and emotional custody 

cases, we afford them “great deference” in making custody decisions and in 

determining what is in the best interests of the child. The applicable 

standard of review is still “abuse of discretion.” But here, we are not even 

reviewing the merits of the actual custody or “best interests” decision, but 

rather, the family court’s denial of Father’s request for a continuance to 

seek counsel. 

We also note that in In re Jane Doe, Born on May 22, 1976, 84 Hawaiʻi 41, 

46, 928 P.2d 883, 888 (1996) which the dissent cites and which states that 

family courts have wide discretion in making decisions that will not be set 

aside without a manifest abuse of discretion, we actually held that the 

family court abused its discretion in denying a motion for new trial, which 

resulted in the exclusion of testimony inferentially bearing upon the best 

interests of a child. 
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but to be heard in a “meaningful manner.” See AC, 134 Hawaiʻi at

232-34, 339 P.3d at 731-32 (finding an abuse of discretion in

the family court’s setting of a rigid time period for custody 

trial based on the important constitutional interest involved). 

As the ICA majority noted and as the transcript passages in 

Section II(B) depict, “[t]he record indicates that Father was 

unfamiliar with the trial process, did not understand that trial 

would impose different requirements than prior hearings that he 

attended, and did not know how to conduct cross-examination. 

Father was also burdened with language difficulties as English 

was not his first language[.]” DJ, SDO at 2. As the ICA 

majority also emphasized, Father did not seek the continuance 

for a general delay, and Father’s substantive parental rights 

were at stake at trial. DJ, SDO at 5. In addition, the 

continuances before September 30, 2016 were not due to dilatory 

tactics by Father.

In regard to Father not understanding that the September 30, 

2016 trial would impose different requirements than prior court 

hearings, although Father had appeared at various “hearings,” 

and although the family court referred to the initial setting on 

July 8, 2016 as a “trial,” the written orders referred to the 

trial as an “extended hearing.” It also appears that Father 

received some information regarding trial requirements because 
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he appeared with witnesses and exhibits.17 However, even if 

Father had received some basic information regarding “extended 

hearing” or “trial” requirements, as noted by the ICA majority 

and as reflected in Section II(B), he clearly was unfamiliar 

with cross-examination of witnesses at a trial, and had 

difficulty understanding and expressing himself in English in a 

case involving the fundamental and important constitutional 

interest of the care, custody, and control of his children. 

Significantly, it was when the family court stated it would 

be calling the CIU social worker as its own witness that Father 

requested a continuance to seek and retain counsel. The family 

court denied Father’s request for a continuance on the grounds 

that Mother’s motion had initially been filed in February (about 

seven months earlier), there had been numerous appearances 

before Judge Kupau, and that, therefore, the request was “too 

late.” As reflected in Section II(B), however, Father explained 

that only he, Mother, and the judge had been present at past 

hearings, and that he was unfamiliar with the trial process, 

 

17 If the family court provides written guidelines, pretrial orders, or 

otherwise provides other information to pro se litigants regarding trial 

requirements, the record would be enhanced by including this information. 
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including cross-examination. In addition, as pointed out by the 

ICA, and as reflected in Section II(B) above:

[The record] further indicates that Father had not 

officially been served with the CIU report, which the 

family court introduced at the trial and on which the 

family court relied, and it is unclear when Father actually 

received the report.

DJ, SDO at 2.

As also noted by the ICA majority, the record does not 

reflect that Father had been served with the September 23, 2016 

CIU Report on or about that date. Although it appears the 

parties were in possession of the CIU Report during the trial,18

it is unclear whether this occurred on the day of or before the 

September 30, 2016 trial date. It was important to provide the 

parties with sufficient time to review findings from a custody 

study, as Judge Kupau had earlier noted at the March 30, 2016 

hearing, to allow them to prepare for trial accordingly.

Although there had been previous appearances before Judge 

Kupau, those appearances had occurred before preparation of the 

CIU Report, which contained major recommendations adverse to 

 

18 When Father attempted to cross-examine the CIU social worker, he tried 

to point out that her report and investigation were incomplete because she 

did not describe what types of food were in his refrigerator and what the 

children were doing while they were at their paternal grandparent’s house 

during the home-visit, indicating that Father had read the CIU report by that 

time. 
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Father. In fact, it was not until September 14, 2016, nine days 

before the report, that the CIU social worker conducted a home 

visit and observation of Father with the children at Father’s 

home. Father’s perception of the social worker’s attitude 

toward him prompted his detailed letter to Judge Kupau on 

September 21, 2016. The CIU report was dated September 23, 2016 

and it is unclear whether Father received it before the 

September 30, 2016 date of trial. Thus, even if Father had 

sought counsel immediately after receiving the report with 

findings adverse to him, he realistically did not have adequate 

time to retain and receive appropriate assistance from counsel 

before the September 30, 2016 trial date. 

In other words, Father did not have seven months to obtain 

counsel, as implied by the family court, after receiving the 

adverse CIU Report.

19 Father requested a continuance to seek 

counsel when the family court informed the parties that it would 

be calling the CIU social worker as its own witness. Under the 

circumstances, the family court’s ruling that “Father presented 

 

19 For this reason, the California Court of Appeal cited by the dissent, 

A.G. v. C.S., 246 Cal. App. 4th 1269 (Cal. Ct. App. 2016), is clearly 

distinguishable on its facts, as the mother in that case apparently had 

several months to seek counsel without any intervening event such as the CIU 

Report here. 
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no excuse for his failure to retain legal counsel in a timely 

fashion” is therefore erroneous. In fact, Father’s September 21, 

2016 letter to the Judge Kupau should have alerted the family 

court that Father might need to seek counsel or at least need 

more time to gather evidence to respond to a twenty-eight page, 

single-spaced report that summarized the testimonies of numerous 

witnesses and implicated important constitutional interests.

The family court could have exercised its discretion to ask 

Father on September 30th whether he needed more time to seek 

counsel or prepare evidence to respond to the Report instead of 

proceeding with trial. 

Also, Father’s right to be heard in a “meaningful manner” 

included his right to cross-examine the CIU social worker. 

Cross-examination is the “greatest legal engine ever invented 

for the discovery of truth.” California v. Green, 399 U.S. 149, 

158 (1970) (citations omitted). The importance of crossexamination is not limited to criminal cases. As the United 

States Supreme Court stated in the context of a complex 

antitrust case, 

It is only when the witnesses are present and subject to 

cross-examination that their credibility and the weight to 

be given their testimony can be appraised. Trial by 

affidavit is no substitute for trial by jury which so long 

has been the hallmark of ‘even handed justice.’

Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 

(1962). We have also recognized the importance of allowing 
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cross-examination in the context of a civil proceeding affecting 

substantial rights. See In re Waiola O Molokai, Inc., 103 

Hawaiʻi 401, 443, 83 P.3d 664, 706 (2004) (finding error in 

refusal to permit cross-examination regarding limu population 

along shoreline with respect to protection of native Hawaiian 

traditional and customary gathering rights). 

The importance of the right of cross-examination with 

respect to the CIU Report is explicitly recognized by the 

Legislature in HRS § 571-46(a)(4), which provides in relevant 

part that

[w]henever good cause appears therefor, the court may 

require an investigation and report concerning the care, 

welfare, and custody of any minor child of the parties. 

When so directed by the court, investigators or 

professional personnel attached to or assisting the court, 

hereinafter referred to as child custody evaluators, shall 

make investigations and reports that shall be made 

available to all interested parties and counsel before 

hearing, and the reports may be received in evidence if no 

objection is made and, if objection is made, may be 

received in evidence; provided the person or persons 

responsible for the report are available for crossexamination as to any matter that has been investigated[.] 

 

HRS § 571-46(a)(4) (emphasis added). Yet, Father clearly did 

not understand how to exercise this right to cross-examination. 

The concurrence and dissent (“dissent”) states that Father 

did not identify what information he was prevented from 

eliciting on cross-examination. We have recognized, however, 

that “the harm suffered by parents proceeding without counsel 

may not be readily apparent from the record, especially because
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without the aid of counsel, it is unlikely that a case is 

‘adequately presented.’” In re T.M., 131 Hawaiʻi 419, 436, 319 

P.3d 338, 355 (2014) (citing Lassiter v. Dep’t of Soc. Servs. Of 

Durham Cnty., N.C., 452 U.S. 18, 51 (1981) (Blackmun, J., 

dissenting)).

20 We have also recognized that “[c]ounsel often 

cannot know in advance what pertinent facts may be elicited on 

 

20 The dissent contends that Father successfully gave opening and closing 

statements, presented his evidence, elicited testimony from his witnesses, 

and cross-examined Mother’s witnesses, that he competently presented his case, 

and the family court’s ruling merely avoided further unnecessary delay. Not 

only do we disagree with this contention, as indicated by this quoted passage 

in In re T.M., when there is a deprivation of counsel, it is unclear what 

harm may have been suffered by a parent. 

In addition, due process requires that “justice []not only be done but 

[] manifestly be seen to be done.” In re Estate of Damon, 119 Hawaiʻi 500, 

509, 199 P.3d 89, 98 (2008). The family court’s reliance on previous postdecree motions to draw adverse inferences against Father appears unfair when 

the family court informed the parties at the commencement of trial that the 

past arguments were not relevant. Also, the family court’s reliance on 

Father’s alleged failure to refer matters to mediation appears unfair when 

the issue was never raised or discussed, and when the family court may not 

have had the entire background. Also, it does not appear just for the family 

court to have ended Father’s legal custody when Mother repeatedly made it 

clear that she was not making such a request and the family court’s 

questioning only suggested it was considering “tie-breaker” authority with 

respect to legal custody. Counsel would have been able assist Father on 

these issues.

Moreover, in addition to the problems with cross-examination, Father 

was also told by the family court during his “closing argument” that he 

should have asked mother during cross-examination whether it would be fair 

for Father to only have the children during summer vacation, further 

indicating that Father did not understand the process. The family court also 

incorrectly suggested to Father that he could retain counsel after the trial 

only for purposes of prosecuting an appeal, rather than for post-trial or 

other motions. Counsel most probably could have been of assistance in 

Father’s motion for reconsideration. 
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cross-examination.” State v. Maluia, 107 Hawaiʻi 20, 32, 108 

P.3d 974, 986 (2005) (quoting Alford v. United States, 283 U.S. 

687, 692 (1931)). In any event, as contended by Father’s 

appellate counsel, counsel could have not only argued applicable 

law, but could also have presented additional evidence, 

including conducting a much more rigorous cross-examination of 

the CIU social worker, to address various issues in the 

relocation decision. For all of these reasons, we respectfully 

but strongly disagree with the dissent.

The family court denied Father’s request for a continuance 

based solely on the grounds it had been made during trial and 

was “too late.” Due process concerns must prevail over court 

scheduling concerns. Prejudice to Mother was not raised or 

cited as a reason for denying a continuance.

21 Based on Father’s 

constitutional interest in the care, custody, and control of his 

children, and for all of the reasons stated, the ICA majority did 

not err by holding that the family court abused its discretion 

 

21 It appears Mother wished to move quickly to join Husband and start Son 

in a North Carolina school, but that by the time the family court ruled on 

November 23, 2016, it made more sense for Son to start at a new school after 

the winter break. In any event, under the circumstances, Father should have 

been given a reasonable continuance to seek counsel. 
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in not granting Father’s request for a continuance to seek the 

assistance of counsel.

22

B. The family court did not abuse its discretion in 

considering the CIU Report. 

Because issues regarding the CIU Report may arise on remand, 

we address Mother’s second question on certiorari. 

Father argued that the family court erred in considering

the CIU Report because he did not consent to a custody 

evaluation being performed by the family court’s CIU and because 

the CIU social worker was not qualified to serve as a custody 

evaluator under HRS § 571-46.4. This is an evidentiary question 

of law reviewed under the right/wrong standard of review.

With respect to Father’s alleged lack of consent to a 

custody evaluation by the family court’s CIU, HRS § 571-46(a)(4)

provides in relevant part as follows:

23

Whenever good cause appears therefor, the court may require 

an investigation and report concerning the care, welfare, 

and custody of any minor child of the parties. When so 

directed by the court, investigators or professional 

personnel attached to or assisting the court, hereinafter 

 

22 The family court should have procedures in place that allow all judges 

to set further trial dates when necessary to ensure protection of important 

constitutional interests, such as the care, custody, and control of children. 

Father should have been granted a reasonable continuance to seek the 

assistance of counsel, whether or not he ultimately was successful in doing 

so.

23 There have been no changes to HRS § 571-46 since 2013. 
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referred to as child custody evaluators, shall make 

investigations and reports that shall be made available to 

all interested parties and counsel before hearing, and the 

reports may be received in evidence if no objection is made 

and, if objection is made, may be received in evidence; 

provided the person or persons responsible for the report 

are available for cross-examination as to any matter that 

has been investigated[.] 

 

As can be seen, HRS § 571-46(a)(4) does not require consent 

to a custody evaluation investigation and report before one can

be ordered and considered by the family court. Father does not 

cite to any other authority supporting his contention that 

consent was a prerequisite to the family court’s ability to 

consider the CIU Report. Therefore, Father’s consent was not 

required.

Father also asserts that the CIU social worker was not 

qualified to conduct a child custody evaluation due to HRS § 

571-46.4, which, in general, sets out licensing requirements for 

court-appointed custody evaluators and provides that the 

judiciary shall maintain a publicly accessible registry of child 

custody evaluators qualified pursuant to that section.24 This is 

also a question of law reviewed under the right/wrong standard.

 

24 HRS § 571-46.4 provides;

Child custody evaluators; qualification; registry; 

complaints.

(continued. . .)
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(continued. . .)

(a) A person may be appointed as a child custody evaluator 

for purposes of section 571-46 if the person is actively 

licensed as a:

(1) Physician under chapter 453 and is a board 

certified psychiatrist or has completed a residency

in psychiatry;

(2) Psychologist under chapter 465;

(3) Marriage and family therapist under chapter 451J; 

or

(4) Clinical social worker under section 467E-7(3).

(b) A person may be appointed as a child custody evaluator 

in the absence of a license under subsection (a) if:

(1) The individual has obtained education and 

training that meet nationally recognized competencies and 

standards of practice in child custody evaluation; provided 

that there are no child custody evaluators enumerated under 

subsection (a) who are willing and available, within a 

reasonable period of time, to perform child custody 

evaluations; or

(2) The parties stipulate to a person who does not 

qualify as a child custody evaluator under subsection (a) 

and the court approves that person as a fact-finding 

investigator to the court.

(c) The judiciary shall maintain on its website a publicly 

accessible registry of child custody evaluators who are 

qualified pursuant to this section. Professionals who are 

willing and available to perform child custody evaluations 

shall be responsible for providing the judiciary with 

relevant information, including contact information, 

evidence of qualifications, and fees.

(d) The judiciary shall establish a referral process to 

allow parties to file a complaint with the judiciary 

regarding a court-appointed child custody evaluator. Upon 

notification by a party of the party’s intent to file a 

complaint against a child custody evaluator appointed under 

subsection (a), the judiciary may refer the complainant to 

the appropriate licensing authority. The judiciary shall 

submit to the legislature an annual report regarding the 

number of complaints against court-appointed child custody 

evaluators that are processed through the referral process.

(e) A complaint against a court-appointed child custody 

evaluator not qualified under subsection (a) may be 

resolved through civil litigation.
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HRS § 467E-6(2) (2013), however, exempts CIU social workers from 

the licensure requirements of HRS Chapter 467E.25 Father’s 

argument therefore lacks merit.

Mother also contests Father’s argument that the family 

court abused its discretion in considering the CIU Report 

because the record is unclear as to whether Father had been 

officially served with a copy, and whether Father had actually 

received the report before trial. HRS § 571-46(a)(4) requires 

that “investigations and reports . . . be made available to all

interested parties and counsel before [the] hearing[.]” As

Father’s counsel will have had ample time to review the CIU 

Report on remand, we need not address this issue. We agree, 

 

25 HRS § 467E-6 provides in relevant part that “[l]icensure shall not be 

required of . . . (2) Any person employed by a federal, state, or county 

government agency in a social worker position, but only at those times when 

that person is carrying out the duties and responsibilities as a social 

worker in governmental employment[.]”

Article VI, section 7 of the Constitution of the State of Hawaiʻi 

provides this court with the power to promulgate court rules relating to 

practice and procedure, which have the force and effect of law, including the 

Hawaiʻi Rules of Evidence. Admissibility of a CIU social worker’s opinion 

regarding custody would be subject to the rules of evidence, including the 

rules regarding qualification as an expert.

In addition, the first sentence of HRS § 571-46.4 provides that a 

person may be appointed as a child custody evaluator “for purposes of section 

571-46,” and subsection (4) of HRS 571-46 in turn provides that “[w]here 

there is no child custody evaluator available that meets the requirements and 

standards . . . the court may appoint a person otherwise willing and 

available in accordance with section 571-46.4[,]” which also provides 

exceptions to the licensure requirement. See HRS § 571-46.4 quoted in note 

25, supra. Such circumstances exist here. See Section II(B), supra.
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however, that parties should be given adequate time to review 

and respond to a twenty-eight page, single-spaced report that 

summarizes the testimonies of numerous witnesses and implicates 

important constitutional interests.

Finally, Mother raises as an issue on certiorari and 

requests that this court address Father’s contention that the 

family court abused its discretion in considering the CIU Report.

Father had argued that the CIU Report was flawed and that its 

recommendation was suspect because it did not explicitly address 

all factors set forth in HRS § 571-46(b), and that it could have 

included additional information that would have helped the 

family court ascertain whether relocation was in the children’s 

best interests. Father’s arguments in this regard go to the 

weight to be given the report, not to its admissibility. See

City & Cty. of Honolulu v. Bonded Inv. Co., 54 Haw. 385, 390-91, 

507 P.2d 1084, 1089 (1973) (“The fact that an expert witness 

omits consideration of one element of many in arriving at [an] 

opinion . . . goes to the weight of [the expert’s] testimony 

rather than to the admissibility of [the expert’s] opinion.”).

The CIU Report addresses nearly all of the factors that the 

family court is required to consider in determining the best 
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interests of the children pursuant to HRS § 571-46(b).

26 Thus, 

Father’s argument that the CIU report is flawed because it fails 

 

26 HRS § 571-46(b) provides: 

(b) In determining what constitutes the best interest of 

the child under this section, the court shall consider, but 

not be limited to, the following:

(1) Any history of sexual or physical abuse of a 

child by a parent;

(2) Any history of neglect or emotional abuse of 

a child by a parent;

(3) The overall quality of the parent-child 

relationship;

(4) The history of caregiving or parenting by each 

parent prior and subsequent to a marital or other 

type of separation;

(5) Each parent’s cooperation in developing and 

implementing a plan to meet the child’s ongoing 

needs, interests, and schedule; provided that this 

factor shall not be considered in any case where the 

court has determined that family violence has been 

committed by a parent;

(6) The physical health needs of the child;

(7) The emotional needs of the child;

(8) The safety needs of the child;

(9) The educational needs of the child;

(10) The child’s need for relationships with 

siblings;

(11) Each parent’s actions demonstrating that they 

allow the child to maintain family connections 

through family events and activities; provided that 

this factor shall not be considered in any case where 

the court has determined that family violence has 

been committed by a parent;

(12) Each parent’s actions demonstrating that they 

separate the child’s needs from the parent’s needs;

(13) Any evidence of past or current drug or 

alcohol abuse by a parent;

(14) The mental health of each parent;

(15) The areas and levels of conflict present 

within the family; and

(16) A parent’s prior wilful misuse of the protection 

from abuse process under chapter 586 to gain a 

tactical advantage in any proceeding involving the 

custody determination of a minor. Such wilful misuse 

(continued. . .)
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to address all requirements governing a family court’s custody 

decision lacks merit.

C. Based on the effect an out-of-state relocation has on 

parental and children’s rights, a family court should 

consider available resources in reviewing a relocation 

request 

This case highlights one of the difficult decisions 

addressed by family court judges in this state—whether to allow 

one parent to relocate out-of-state with a child. Such 

decisions implicate the rights of parents as well as the rights 

of children.

With respect to parental interests, we have recognized the 

importance of procedural safeguards in protecting parental 

liberty interests in the care, custody, and control of children. 

 

(continued. . .)

may be considered only if it is established by clear 

and convincing evidence, and if it is further found 

by clear and convincing evidence that in the 

particular family circumstance the wilful misuse 

tends to show that, in the future, the parent who 

engaged in the wilful misuse will not be able to 

cooperate successfully with the other parent in their 

shared responsibilities for the child. The court 

shall articulate findings of fact whenever relying 

upon this factor as part of its determination of the 

best interests of the child. For the purposes of 

this section, when taken alone, the voluntary 

dismissal of a petition for protection from abuse 

shall not be treated as prima facie evidence that a 

wilful misuse of the protection from abuse process 

has occurred.

The CIU Report itself is sealed due to its confidentiality pursuant to 

HRS § 571-84(c). See note 5, supra.
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In Doe, we held that parents in need of an interpreter because 

of an inability to understand English are entitled to the 

assistance of one at any family court hearing in which their 

parental rights are substantially affected. Doe, 99 Hawaiʻi at 

526, 57 P.3d at 451. Then in T.M., we recognized that 

“[i]nherent in the substantive liberty interest that parents 

have in the care, custody, and control of their children under 

the Hawaiʻi Constitution is the right to counsel to prevent 

erroneous deprivation of their parental interests.” 131 Hawaiʻi 

at 434, 319 P.3d at 353. We held that in light of the 

constitutionally protected liberty interest at stake in a 

termination of parental rights proceeding, indigent parents must 

be guaranteed the right to court-appointed counsel in 

termination of parental rights proceedings under the due process 

clause of the Hawaiʻi Constitution. 131 Hawaiʻi at 436, 319 P.3d 

at 355.27 

 

27 In so holding, we recognized that, as Justice Stevens discussed in 

Lassiter, a state’s decision to deprive a parent of a child is often “more 

grievous” than a state’s decision to incarcerate a criminal defendant. 

Lassiter, 452 U.S. at 59 (Stevens, J., dissenting). We further pointed out 

that, as explained by Justice Blackmun, a parent in termination proceedings 

may struggle with legal issues that are “neither simple nor easily defined,” 

and with a standard that is “imprecise and open to the subjective values of 

the judge.” T.M., 131 Hawaiʻi at 435, 319 P.3d at 354, (citing Lassiter, 452 

U.S. at 45) (majority opinion). 
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The main populated Hawaiian Islands are some of the most 

remote land masses in the world, located about 2,400 miles from 

California and 4,000 miles from Japan. When a child relocates 

out-of-state with the other parent, even if a court order allows 

for visitation during summer or winter vacations, travel 

expenses make regular continued contact with the child quite 

difficult, if not impossible, for the great majority of Hawaiʻi 

parents. Even if a parent can afford travel expenses, a child’s 

relocation out-of-state substantially affects the rights of a 

custodial parent. As in this case, the prospect of children 

relocating out-of-state can be extremely difficult for a parent.

When one parent requests permission to relocate out-ofstate with a child, however, under Hawaiʻi law, the governing 

consideration is not a parent’s interests, but whether allowing 

relocation is in the “best interests of the child.” See HRS § 

571-46(a)(1);28 see also Fisher v. Fisher, 111 Hawaiʻi 41, 50, 137 

 

28 HRS § 571-46(a)(1) provides in general as follows:

Criteria and procedure in awarding custody and visitation; 

best interest of the child.

(a) In actions for divorce, separation, annulment, 

separate maintenance, or any other proceeding where there 

is at issue a dispute as to the custody of a minor child, 

the court, during the pendency of the action, at the final 

hearing, or any time during the minority of the child, may 

(continued. . .)
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57

P.3d 355, 364 (2006). In Fisher, we discussed our precedent as 

well as approaches of other states in relocation cases, and 

reaffirmed that the “best interests of the child” standard, 

which provides a family court with “broad discretion to weigh 

the various factors involved,” also governs relocation cases. 

Fisher, 111 Hawaiʻi at 50, 137 P.3d at 364. 

A proposed out-of-state relocation with a child undoubtedly 

raises difficult questions regarding what is actually in a 

child’s “best interests.”29 In addition, a family court’s “best 

interests” determination also implicates a child’s rights to 

parental contact. See HRS § 576-46(b)(7); see also Sweet v. 

Passno, 206 A.D.2d 639, 640 (N.Y. App. Div. 1994) (recognizing 

 

(continued. . .)

make an order for the custody of the minor child as may 

seem necessary or proper. In awarding the custody, the 

court shall be guided by the following standards, 

considerations, and procedures:

(1) Custody should be awarded to either parent or to 

both parents according to the best interests of the 

child, and the court also may consider frequent, 

continuing, and meaningful contact of each parent with 

the child unless the court finds that a parent is 

unable to act in the best interest of the child[.]

29 HRS § 571-46(b), quoted in note 26, supra, sets out a non-exhaustive 

list of factors a court is to consider in determining best interests, but the 

factors are not geared toward relocation decisions.
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child’s right to maintain a meaningful and nurturing 

relationship with parent). 

Therefore, an out-of-state relocation affects a parent’s 

substantive liberty interest in the care, custody, and control 

of a child, but is governed by a child’s best interests, which 

includes a child’s right to parental contact. In making these

difficult determinations regarding whether or not to allow 

relocation, family courts should consider CIU or any other 

available family court social worker reports. Family courts 

also have the discretion to appoint guardians ad litem for 

children in relocation cases pursuant to HRS § 571-46(a)(8).

30 

This case, however, also illustrates the importance of family 

courts providing parties with sufficient time to review and 

respond to custody recommendations in order to comport with 

procedural due process. 

 

30 HRS § 571-46(a)(8) provides:

The court may appoint a guardian ad litem to represent the 

interest of the child and may assess the reasonable fees 

and expenses of the guardian ad litem as costs of the 

action, payable in whole or in part by either or both 

parties as the circumstances may justify[.]
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V. Conclusion

Based on the reasons above, the ICA’s February 8, 2018 

Amended Judgment on Appeal remanding this case to the family 

court is affirmed. The family court is to conduct further 

proceedings consistent with this opinion.

Blake T. Okimoto, /s/ Sabrina S. McKenna 

for petitioner

/s/ Richard W. Pollack

Rebecca A. Copeland, /s/ Michael D. Wilson

for respondent