DJ v. CJ

464 P.3d 790

DJ, Respondent/Plaintiff-Appellant,

v.CJ, Petitioner/Defendant-Appellee.

SCWC-17-0000027

Supreme Court of Hawai‘i.

APRIL 13, 2020

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 that she could relocate from Hawai‘i 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 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 Hawai‘i 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 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 cross-examine 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 Hawai‘i in 1997. Father met Mother in the Philippines in 2007 while vacationing there, and Mother became pregnant. After Father returned to Hawai‘i, 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 Hawai‘i 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 Hawai‘i 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 Waikiki Hotel. Mother was employed as a certified nurse's aide at a Hawai‘i Kai retirement community and as a cashier at Times Supermarket in Kaimuki.

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 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 Hawai‘i 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 Hawai‘i, 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 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."

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 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...