Doe v. Doe

Decision Date27 February 2009
Docket NumberNo. 28662.,28662.
Citation202 P.3d 610,120 Haw. 149
PartiesJohn DOE, Petitioner-Appellee, v. Jane DOE, Respondent-Appellant.
CourtHawaii Court of Appeals

Gary Victor Dubin, on the brief, for Respondent-Appellant.

Elizabeth C. Melehan, on the brief, for Petitioner-Appellee.

Marianita Lopez, on the brief, Guardian Ad Litem.


Opinion of the Court by LEONARD, J.

Respondent-Appellant Jane Doe (Mother) appeals from a June 19, 2007 order (Final Order) of the Family Court of the Second Circuit (Family Court), which granted sole legal and sole physical custody of the parties' five-year-old child (Child) to Petitioner-Appellee John Doe (Father) and granted Father leave to relocate to the mainland with Child. Mother also challenges two interlocutory orders of the Family Court, a September 23, 2005 ex parte order awarding sole custody to Father (Ex Parte Order), and an August 17, 2006 order granting in part and denying in part Mother's motion to vacate the Ex Parte Order and two purported stipulated orders (Order re Motion to Vacate),1 as well as the Family Court's findings of fact (FOFs) and conclusions of law (COLs) entered on June 19, 2007.2

We hold that: (1) Mother's argument that the Ex Parte Order violated her substantive liberty interests and due process rights under the Hawai`i Constitution is not moot because of the significant, unmitigated impact of the Ex Parte Order; (2) under the Hawai`i Constitution, absent express findings of exigent or emergency circumstances, due process requires that a parent be given notice and an opportunity to be heard prior to a change in primary physical or legal custody in family court custody matters; (3) the Family Court erred when it issued a blanket protective order precluding Mother from obtaining any discovery from the guardian ad litem without balancing Mother's legitimate discovery needs in the context of this case against the alleged injury or burden that might result from Mother's discovery; (4) subject to reasonable restrictions and limitations, Mother was entitled to seek discovery from a therapist whose opinions played a critical role in this case and to subpoena the therapist's testimony; (5) the Family Court did not err in excluding expert testimony that lacked foundation; (6) a party's willingness to submit to polygraph testing, as well as the results of such polygraph testing, are inadmissible as evidence in child custody proceedings; (7) in this case, polygraph results substantially contributed to the granting of the Ex Parte Order, triggered Mother's prolonged separation from Child, substantially affected the outcome of the custody proceedings, and were highly prejudicial to Mother in ways that were not adequately addressed by merely excluding those results at trial; and (8) the best interest of a child can be justly and adequately determined only in proceedings that are consistent with the requirements of the Hawai`i Constitution and applicable law. As provided herein, we vacate the Final Order and remand for further proceedings consistent with this opinion.


After a "short term," unmarried, relationship between Mother and Father, Child was born in March of 2002. Mother and Father lived together in Father's home during Mother's pregnancy. When Child was approximately five weeks old, Father asked Mother to move out. In June of 2002, Mother and Child moved to California, where they stayed with Mother's father (GJ) and stepmother (KJ) (collectively, the Js) for two weeks before moving into an apartment. During the one-year period that Mother and Child lived in California, GJ provided financial assistance to Mother and the Js babysat for Child while Mother worked and went to school. As later reported by a Guardian Ad Litem (GAL) appointed by the Family Court, KJ also wanted to help Mother "by giving her advice on child care." Mother and the Js became estranged in or about June 2003.

Also in 2003, Father petitioned a California court regarding paternity and visitation. On June 5, 2003, with the agreement of both Mother and Father, the California court entered a Conciliation Court Agreement and Stipulated Order Re: Custody and Parenting Plan and a Child Custody Visitation Order Attachment, both of which were incorporated into and made part of a Judgment entered by the California court on June 10, 2003 (California Custody Judgment). The parties stipulated that Father was the biological father of Child, Mother and Father would hold joint legal custody of child, and, upon Mother's moving to Hawai`i with Child (as agreed), Mother would have the care and responsibility of Child, except during Father's time, which was every Tuesday and Thursday, from 3 p.m. to 7 p.m., and the 1st, 2nd, 3rd, and 5th weekend of the month from Saturday at 9 a.m. to 4 p.m. or Sunday 9 a.m. to 4 p.m. (alternating with each weekend visitation). Father's visitation was to be changed to every other weekend, from Saturday at 9 a.m. to Sunday at 4 p.m., upon Child becoming thirty months old or sooner, if the parents agreed that Child was ready. This parenting schedule was further modified by a holiday and vacation schedule. Beginning on June 15, 2003, Father was ordered to pay child support to Mother in the monthly amount of $450, along with 50% of the total child care costs and 50% of the reasonable uninsured health care costs for Child. Various other issues were memorialized and/or addressed in the California Custody Judgment.

It appears that Mother and Child moved back to Maui in July 2003 and that Father already resided on Maui at that time. On March 17, 2004, Mother filed pro se a Registration of Child Custody Determination; Custody/Visitation Statement; Exhibit A (California Custody Judgment) in UCCJEA No. 04-1-0003 (2004 Proceeding) in the Family Court.3 Although the exact timing is unclear, it is abundantly clear that a dispute arose between Mother and Father over visitation and custody of Child, which included, inter alia, allegations by Mother that Father had sexually abused Child.

On September 17, 2004, Father filed a petition in the 2004 Proceeding seeking sole physical and legal custody of Child (Sole Custody Motion # 1).4 Father claimed that Mother was difficult to deal with, refused to make reasonable accommodations for Father's visitation, intended to interfere with his overnight visitation with Child, and falsely accused Father of molesting Child. Father argued, inter alia: "I am now self-employed and have great flexibility in my schedule. I am able to have our [Child] on a full-time basis with reasonable visitation to [Mother]."

Father concurrently submitted an ex parte motion to enforce the California Custody Judgment, noting that Child had reached the age of thirty months (days earlier), and seeking to immediately enforce his visitation rights, specifically including overnight visits. On September 21, 2004, this ex parte motion was filed, along with an attached order granting the ex parte motion, without prior notice to Mother. An acknowledgement of service dated September 28, 2004, indicates that Mother was served on September 24, 2004. Prior to Family Court's ruling on Father's ex parte motion, however, on September 18, 2004, Father kept Child overnight following his regular Saturday day visit. When he did not return Child to Mother's care, the police were called and Mother reportedly sought and obtained a temporary restraining order, which was later dismissed.

On September 23, 2004, Father caused subpoenas to be issued to the director of Child's preschool (for all records and correspondence pertaining to Child), the Custodian of Records for the Maui Police Department (for all records and reports pertaining to Mother and Father), and two individual police officers. Also on September 23, 2004, the Js filed a motion to intervene for the purpose of allowing them to seek visitation with Child.

On September 29, 2004, a hearing was held on Father's Sole Custody Motion # 1 and the Js' motion to intervene. Roughly ten months later, on August 3, 2005, an interim order was entered granting the Js' motion to intervene, ordering the appointment of Jacque Ford as GAL (GAL # 1), and confirming visitation to Father on Tuesday and Thursday afternoons, with overnight visitation subject to the GAL's inspection of Father's residence. An evidentiary hearing was set for January 3, 2005 on the Js' request for visitation and Father's Sole Custody Motion # 1.

On December 2, 2004, Father filed a motion for appointment of a new GAL, which also sought a temporary order modifying custody/visitation, an order that Mother submit to psychological evaluation, and to continue trial. A hearing was held on December 15, 2004, but no transcript was provided to this court. A written order, which was entered on August 3, 2005, stated that the parties agreed to the appointment of a new GAL and if they could not agree on a name, they would both submit names of potential appointees to the court. The order also stated that the issue of psychological evaluation was moot because evaluations had already been completed on both parties by Mark Breithaupt, Ph.D. (Dr. Breithaupt), and the parties agreed that the evaluations could be submitted to the court under seal.

On January 12, 2005, Father caused subpoenas to be issued to GAL # 1, Ellen Brewerton of Child Protective Services (Brewerton), and Dr. Breithaupt. GAL # 1's Report was filed (under seal) on January 13, 2005, with an addendum filed on January 14, 2005. GAL # 1's report noted disturbing reports from various persons concerning the Js' past conduct, particularly with respect to GJ. GAL # 1 reported "multiple psychological allegations" by Mother and Father and her opinion that Dr. Breithaupt's recommendations "need to be followed," including Father's completion of a parenting class (which Mother had already completed). GAL # 1 recommended that Mother and Father be allowed time,...

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