Introduction to Hawaii Family Court
The Hawaii Family Court System is part of the statewide courts of the State of Hawaii, which are established under Article VI, § 1 of the Hawaii State Constitution. The family court consists of fourteen (14) judges, many commissioners and referees and other staff. It has jurisdiction over those cases falling under Section 580-1, Hawaii Revised Statutes. These are cases dealing with divorce, divorce annulment, dissolution of reciprocal divorce decrees, separate maintenance, custody, visitation and child support, property division and alimony, restraining orders in domestic abuse cases and abuse and neglect of children.
Some even broader case types have been granted to the family court by other statutes. These are contained in the following sections of the Hawaii Revised Statutes:
560 – Uniform Probate Code (some , but not all)
587A – Hawaiian Adoption of Foreign Adoptees Act
632 – Uniform Interstate Family Support Act
584 – Recognition of Division of Paternity (6 months or less)
586 – Uniform Reciprocal Enforcement of Support Act
582 – Reciprocal Enforcement of Support Act
584-9 – Uniform Intercountry Adoption Act (inter-country adoption)
586-24, 632-41 etc. – Uniform Child Custody Jurisdiction and Enforcement Act
The Hawaii family courts are the only division of the courts which does not render written or recorded oral findings of fact and conclusions of law; unless requested in writing in non-disposition matters and prior to trial in disposition matters. It also does not require the taking of an oath from parties at oral hearings. There are no juries, and the Judges make their decisions on cases by themselves.
Important Hawaii Family Court Rules
The Hawaii Family Court is governed by a set of rules that dictate the conduct and procedures in family-related proceedings and matters. Some of the most important the Family Court Rules (herein referred to as HFCR) include:
HFCR Rule 12
This rule addresses service of documents, by which all pleadings shall be served upon each party, and proof of service shall be filed with the court. This rule requires that parties file papers electronically, and any service of documents and papers shall also be done electronically. Parties can now make use of e-fax, email and other electronic means when serving other parties.
HFCR Rule 15
The purpose of this rule is to prevent the undue delay of the court process. This rule enables the court to impose appropriate sanctions or issue any other orders that may be just. The rule stipulates that if a party refuses to obey an order with respect to discovery, the court can proceed to dismiss the case or give a judgment by default. It is of utmost importance that as a party to a family court matter, all orders and defaults are complied with.
HFCR Rule 64
This rule concerns garnishment in Hawaii Family Courts. Specifically, it holds that any payment due to a debtor must first be paid to the family court and not those that are owed to the debtor.
HFCR Rule 100
It must be noted that this rule applies particularly to child custody and divorce matters. This rule affects the residence of parties and their children and how courts can effectuate their powers when one party resides outside of the state of Hawaii. The legal residence of parties will affect how and where court proceedings are initiated.
HFCR Rule 105
This rule deals with the issue of child custody and visitation. The court is allowed to enforce any orders for visitation by imposing certain conditions as may be deemed appropriate.
The Family Court Rules are subject to change with time, it is always best to refer to the Hawaii Courts Website or consult a Hawaii Family Attorney.
How to File a Case in Hawaii Family Court
Filing a case in Hawaii Family Court is governed by Rule 5 of the Hawaii Family Court Rules. The general rule is that a petition must be filed and served upon the responding party in any case. There are numerous different family court petitions including divorce, legal separation, separation, protection order, and petitions for establishment of paternity, just to name a few.
The petition and summons must be filled out properly. On the petition it will state whether it is a divorce, legal separation, protection order, paternity, or other type of action. If an apparent omission or error is made in the preparation of the pleadings the clerk may refuse to accept the pleading. In such an event the pro se litigant will be informed of the defect and given a reasonable opportunity to remove the defect by being given notice of the defect and allowed to remedy, by way of amendment the defect within 30 days. Failure to rectify the defect will allow the pro se litigant to request a hearing before the family court on the defect.
If a proceeding is commenced without a lawyer, no consideration will be given by the court to the lack of counsel, or the lack of preparation of documents. Service is allowed on a defendant by leaving a copy of the document at their usual residence or place of business, or at the residence or place of business of their agent for service of process.
On service a signed certificate of service will be included in the pleading. This informs the court and parties that the document was properly served on the receiving party. Failure to include a signed certificate of service with the first pleading filed will result in the case being continued for a hearing in 30 days and again serve as proper notice to the receiving party.
A person 18 years of age or older may serve the pleadings of the family court. A constable may also be appointed by the family court. That constable may serve pleadings, may sequester a jury for jury trials, and may arrest a person who violates the order or judgment of the family court. Additionally, the constable may take away any property or money subject to a family court order.
A person who is served a petition must file an answer within 20 days of service on the responding party. In the event of service outside the state of Hawaii the responding party has 30 days to file an answer. No extension of this time is granted except by order of the family court. On application by the responding party an order may be made by the family court relieving the responding party from defaulting. Failure to file an answer or judgment made upon the failure to file an answer may be set aside by the family court if an answer is tendered before judgment.
Popular Case Types in Hawaii Family Court
The Family Court holds jurisdiction over a variety of cases in the Hawaii court system. The following types of matters are heard by the Associate and District family court judges, and a general overview of the unique handling of these disputes in family court:
Divorce (Divorce With Children; Divorce Without Children) Divorce, sometimes referred to as dissolution of marriage, refers to the termination of a valid marriage between two individuals. In Hawaii, some couples may file for divorce without children, while others will seek to file with children involved. In fact, a divorce case must be filed in the district court in Hawaii if there are no children involved. This is generally a more efficient process, and often times the more affordable option because of less complexity of the divorce action.
If a couple has children, a divorce action, including all matters related to the children, must be filed on the family court side of the courthouse. This gives certain advantage to each party to get the help of the Family Court judges, mediators and other staff, and over time, this specialized court has become more effective in helping families reach agreements that can serve all family members in the long term. The family court will also handle issues of legal separation, annulment, and divorce.
Custody Cases Custody refers to the legal authority to make medical, school, and religious decisions for the minor child, and the time-sharing schedule that establishes a plan on where the child will reside. Both parents often want to be a part of each decision and time-sharing agreement, and while this can be difficult to navigate, the family court does provide resources to help develop a parenting plan that is right for each family.
Guardianship Cases Some families are unable to care for their own children, or a minor child may need custody due to certain circumstances including mental illness. In addition, guardianship may be needed to take care of medical, legal, school, and financial decisions for children or incapacitated adults. Here, the family court judge may appoint a guardian to assume these roles. This is often used to protect family members from fraud as well as other factors.
Domestic Cases Some couples experience issues that result in domestic violence or abuse. A restraining order can be obtained to legally prevent the abuser from interacting with or communicating with the victim. Or, the court may issue a temporary restraining order for harassment, abuse, or stalking. Sometimes the court also orders the abuser to leave the marital home.
Legal Separation and Annulment Cases Divorce, legal separations, and annulment all require the same petitions to the family court. Legal separation is similar to divorce but allows the couple to remain married. An annulment essentially makes it as though the marriage never occurred, so this is the best option for certain circumstances, such as if the marriage is invalid, or one marriage partner was younger than Hawaii state law allows when the marriage occurred.
How the Hawaii Family Court Decides a Case
Decisions in the Hawaii Family Court are a reflection of the rules and regulations established by the Hawaii Supreme Court and the Hawaii Family Court itself. All hearings and court proceedings (excepting, for example, purely ministerial forms filed with the court) begin, and to varying degrees are based on, the Hawaii Family Court Rules. Some areas, like paternity cases, have their own specific rules, while other areas (like divorce cases) rely mainly on a combination of the Hawaii Family Court Rules and the Hawaii Rules of Civil Procedure. To the extent there are any procedural issues, or requirements, for court hearings, this how they arise: the rules say what must be done.
The rules also lay out how the court will decide on either contested or uncontested issues. Take an example of divorce. The standard for the court to divide property is the "equitable distribution" of the assets, and each judge may apply his or her own perception of what equitable means. That said, the rules establish a presumption that the division of marital property should be roughly 50% to each party. Judges are looking to see whether you have treated the other person equitably during the marriage, and are looking to see whether treatment in the divorce process has been equitable; if not, they can make a 60%-40%, 70%-30%, or even 100%-0% split, depending on what they view as one party’s conduct . And, it turns out, that is exactly what judges do, as evidenced by the statistics on contested divorce trials and the resulting split of property.
The same applies to custody and child support. Child support is based on economic, custodial, and childcare considerations set forth in the Hawaii Child Support Guidelines. Custody is based largely on the factors under the Hawaii Child Custody Statutes. The statutes (and related rules) establish that the regular courts have, and exercise, full authority over custody issues, including custody, visitation, and child support issues.
Without going into all the potentially relevant factors, the system is designed so that each judge has no ability to "hide" any of his or her decisions from scrutiny from multiple levels. Any decision that is not based on an uncontested form is made at the hearing level, in open court, and appealable to multiple judicial levels; any alternative dispute resolution approach — like collaborative family law or mediation — is also open to review by a judge if they fail. Likewise, any court ruling or order is reviewable by multiple levels of court. If a judge makes a mistake, parties have recourse within the Family Court and beyond.
Helpful Tips When Using Hawaii Family Court
As you navigate the complexities of the Hawaii family court system, there are a few practical tips to keep in mind. First and foremost, finding the right legal representation is crucial. As discussed in our section on Finding Representation and Legal Aid, there are a number of resources available for those who can’t afford legal counsel. For those who opt to represent themselves, however, be sure to invest time in understanding the rules and processes that govern your case.
When preparing for a hearing, ensure that you have all of the necessary documents filed ahead of time. This may include pleadings, affidavits, witness lists, and other relevant paperwork. Familiarize yourself with the judge’s preferences for hearing presentations and prepare accordingly. It’s also important to dress appropriately for court appearances; the family court is still a formal setting, and first impressions matter. Family court hearings, unlike criminal sid hearings, are open to the public. Be mindful of what you say or do in the courtroom, as it can have an impact on your case.
Above all, remain respectful and open to negotiation. Family law matters can be contentious, and it’s easy to get caught up in the emotion of a case. However, in most cases, the court will encourage settlement and compromise rather than high-stakes litigation.
Recent Amendments to Hawaii Family Court Rules
As with all facets of law, staying abreast of changes in the rules is crucial for both practitioners and individuals involved in court proceedings. The Hawaii Family Court Rules will adjust to reflect changes made in law, or are amended to reflect best practices for effective legal proceedings. Amendments can either expand the scope of rules, or narrow it. Occasionally, the Family Court Rules are amended to exclude certain statutes of limitation applicable to specific claims.
Changes to the Hawaii Family Court Rules
Cases in Hawaii Family Courts are governed by the Hawaii Family Court Rules (HFCR). Traditionally the HFCR mirrored the Hawaii Rules of Civil Procedure (HRCP) with some notable exceptions specific to family law. In October 2017, significant changes were implemented to the HFCR. For example, Rule 2(d) was amended to incorporate some provisions from the HRCP relating to mass electronic filings of documents and for completing mediation. Additionally, Rule 65 is deleted and replaced with language allowing pleas for temporary restraining orders and injunctions in a separate motion as a matter of right. The new Rule 65 permits, but does not require, that the hearing take place on a shortened time frame than what would generally be applicable, and upon lesser notice than generally required. A request for a TRO against an individual should also be made to the specific department in which the case is assigned. Other amendments addressed issues pertaining to discovery, and established guidelines for subpoenaing banks. The newly revised HFCR can be found here.
Implications of Changes to the HFCR
These amendments are of particular significance to attorneys and people currently involved in Hawaii family court proceedings. Practitioners should be well aware of all of the changes in the HFCR to ensure all legal proceedings are conducted in accordance with the rules. An individual in family court who fails to comply with the HFCR, as well as the HRCP, may risk substantial prejudice to their case.
Where to Go for More Information about Hawaii Family Court
Legal Aid Society of Hawaii (LASS): LASS is a non-profit, public interest law firm dedicated to providing equal access to justice in Hawaii by advocating for equal access to justice, empowering individuals to build healthy and safe families, and educating communities about the law. LASS has offices on every island in Hawaii to help low-income families access the legal help they need. LASS does not handle property or financial issues but focuses on domestic violence, foreclosure and family issues such as custody and alimony.
State of Hawaii Judiciary Self-Help Centers: The Hawaii State Judiciary has established Self-Help Centers to assist those who choose to represent themselves in court. Staffed by both lawyers and non-lawyers, staff members do not give legal advice but can offer information on the law and the procedures in the Hawaii courts. Staff assist with family law matters , guardianship of the elderly, evictions, name changes and TROs.
Hawai’i State Bar Association (HSBA) Lawyer Referral Service: Individuals in need of legal advice have the option to use the HSBA’s Lawyer Referral Service to obtain a referral to a local participating lawyer offering an initial half hour consultation for a fee of no more than $35.
American Bar Association Family Legal Guide: This guide is designed to inform users about the range of legal issues they may encounter. The app helps litigants order and understand the information they need to proceed with their case. The app is designed to be accessed quickly and easily, allowing users to get brief overviews of topics while they wait for appointments or at other times. It is designed to address the needs of self-represented litigants and to assist them in making informed decisions.
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