424 P.3d 483 (Hawaii 2018)
143 Hawaii 128
Supreme Court of Hawaii
July 30, 2018
FROM THE FAMILY COURT OF THE THIRD CIRCUIT (CAAP-17-0000539;
FC-M NO. 14-1-0034K)
S. Zola, Kailua-Kona, for petitioner
Luria, Naoko C. Miyamoto, Honolulu, Katherine M.M. Lukela,
C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
previous decision in this case, A.A. v. B.B., 139
Hawaii 102, 384 P.3d 878 (2016), we vacated the final
judgment of the family court denying the petition of A.A.
(hereafter W.N.) for joint custody of a minor child with B.B.
(hereafter S.M.). The case was remanded to the family court
with instructions that it determine whether W.N. established
a prima facie case of de facto custody, and if so, that the
court render a custody award in the childs best interest.
remand, the family court entered an order without holding a
further evidentiary hearing or taking additional evidence in
which it found that W.N. was not a "fit and proper
person" as required to establish a prima facie
entitlement to custody of the minor child. W.N. appealed the
family courts adverse ruling, and the request to transfer
the case to this court was granted. We conclude that the
family court erred in not holding a further hearing to
ascertain whether W.N. is presently a fit and proper person
and whether a custody award would be in the minor childs
present best interests. Accordingly, we vacate the family
courts 2017 Order and remand the case for a further
evidentiary hearing consistent with this opinion. We also
provide guidance as to evidentiary matters that may arise on
II. FACTS AND PROCEDURAL HISTORY
and S.M. entered into a committed relationship in March 2009.
In 2011, W.N. and S.M. jointly decided to bring S.M.s
newborn biological granddaughter (Child) into their home to
raise her as their daughter. S.M. legally adopted Child, and
S.M. and W.N. jointly shared parental care, duties, and
responsibilities for Child. W.N., S.M., Child, and S.M.s
teenage son (Son) lived together as a family unit from
October 2011 until October 2013. In October 2013, W.N. and
S.M. separated, and they entered into a written 50/50
co-parenting agreement for Child. In April 2014, S.M. sent
W.N. a letter declaring that he was revoking the 50/50
co-parenting agreement on the basis that it was his parental
right to do so.
2014, W.N. filed a petition in the Family Court of the Third
Circuit (family court) seeking joint legal and joint 50/50
physical custody of Child (custody petition) pursuant to
Hawaii Revised Statutes (HRS) § 571-46(a)(2) (Supp.
W.N. asserted that he was the de facto
parent of Child and was a fit and proper person to have care,
custody, and control of Child. S.M. sought dismissal of the
custody petition contending that W.N. was a legal stranger to
Child, that HRS § 571-46(a)(2) was unconstitutional, and that
W.N. had no standing before the family court.
October 3, 2014, the family court held an evidentiary hearing
on the custody petition (2014 Hearing).2
Scott and Janet
(collectively, the Crosiers) testified that each had
supervised visitations between W.N. and Child, and they
favorably described the interactions between W.N. and Child.
W.N. sought to introduce the visitation reports into evidence
that the Crosiers had each prepared contemporaneously with
the supervised visitations. The family court sustained S.M.s
objections to their admission because they contained hearsay
statements of Child, rejecting W.N.s argument that the
statements were not offered for the truth of the matter
asserted by Child. The court also sustained S.M.s foundation
objections to the Crosiers using their respective visitation
reports to refresh their recollections. As to Janet Crosier,
W.N. proffered that the reports would aid her in recalling
Childs behaviors and interactions with W.N. that she could
Jamuna Wyss, who was qualified as an expert in parent-child
psychological relationships and parenting styles, testified
that he taught W.N. parenting techniques. Dr. Wyss testified
favorably as to W.N.s relationship with Child. He also
testified that Child would likely suffer "damaging
psychological consequences" if W.N.s relationship with
Child was terminated. W.N.s counsel asked Dr. Wyss if he was
aware of any sexual abuse allegations against W.N. and sought
to introduce a letter written by Dr. Wyss to Child Welfare
Services. The court sustained S.M.s objection to the
admission of the letter and did not allow Dr. Wyss to testify
as to his opinion on the allegations because it was outside
the scope of his April 25, 2014 clinical note (clinical
Dr. Wyss then testified generally that
he did not believe W.N. posed any threat to Child.
W.N. sought to introduce progress notes from his individual
therapy sessions with Dr. Wyss, as well as S.M. and W.N.s
couples therapy sessions with Dr. Wyss. The court again
sustained S.M.s objection to the introduction of the
progress notes as outside the scope of Dr. Wysss clinical
note. Further, Dr. Wyss testified that he taught W.N. anger
and related that, in his opinion, W.N.
had made progress on anger management.5
Jennifer De Costa, a family counselor and a licensed marriage
and family therapist, was called by S.M. and qualified as an
expert in family behavior and relationships. Dr. De Costa
testified that she had treated Son and regularly used written
tests to assess Sons depression and anxiety in treatment.
Dr. De Costa stated that she observed a correlation between
fluctuations in Sons test scores and his interactions with
W.N. S.M. asked Dr. De Costa if Son had displayed
"extreme regression" since W.N. began visitation
with Child, and Dr. De Costa responded affirmatively.
Costa testified that she also met with Child and initially
had no concerns as to Childs development. After visits
started with W.N., however, Dr. De Costa stated that Child
began to exhibit "some regressive behaviors." Dr.
De Costa answered "yes" when asked hypothetically
whether she would have concerns about Child having a
custodial relationship with W.N. given his anger management
problem, her knowledge of W.N.s relationship with Son, and
Childs regressive behaviors. Dr. De Costa further testified
that she did not think that termination of the relationship
would harm Child.
also called W.N.s sister, C.N., to testify. C.N. testified
that she had concerns about W.N.s temper, which she had
expressed to S.M., and that W.N.s behavior had not improved.
the parties arguments, the family court ruled that W.N. had
not shown a compelling state interest as to why the de facto
custody presumption of HRS § 571-46(a)(2) should apply to him
under a strict scrutiny standard. The family court denied the
custody petition and allowed S.M. to stop all visitations. On
December 11, 2014, the family court entered findings of fact,
law, and its final judgment on the custody petition.
appealed, and following transfer of the case to this court,
we held that application of HRS § 571-46(a)(2) would not
infringe upon S.M.s fundamental liberty interests or right
to privacy under the Hawaii Constitution, and that W.N. was
therefore not required to establish a compelling state
interest as a prerequisite for the family court to make a de
facto custody determination. A.A. v. B.B., 139
Hawaii 102, 108, 113-16, 384 P.3d 878, 884, 889-92 (2016).
We noted that the record may support a finding that W.N.
satisfied all elements of HRS § 571-46(a)(2), which would
invoke the de facto custody presumption. Id. at 107
n.8, 384 P.3d at 883 n.8. Additionally, although this court
held that any error by the family court in restricting Dr.
Wysss testimony or excluding the progress notes was harmless
under the circumstances, we stated that "if further
evidentiary proceedings are held on remand, the family court
may revisit its ruling regarding the proffered
Id. at 116 n.23, 384 P.3d at
892 n.23. We vacated the final judgment denying W.N.s
custody petition and remanded the case to the family court
with instructions that the court determine whether W.N. met
the requirements for a de facto custody presumption pursuant...