Child Custody after Death of Custodial Parent in Hawaii

In short, no. In the state of Hawaii, if the custodial parent dies, then the non-custodial parent (i.e., the parent who does not have primary custody of the child) will not automatically get custody. Instead, the family law court with jurisdiction will consider what is in the best interests of the child.

Even in the case where the mother passes away and the parents had joint custody, the father will still not automatically get sole custody. Factors such as the father’s relationship with the child, his ability to provide for his child’s needs, and the child’s own preferences may all be considered when determining whether to award the father sole custody.

Further, it is possible for other family members, such as grandparents or close relatives, to also be considered as potential guardians for the child at the time of the mother’s passing. This is especially true if evidence is provided that they can provide a stable and nurturing environment for the child.

Generally speaking, in Hawaii, a father can gain child custody after death of custodial parent by taking the following steps:

• Establish Paternity: If the father is not already legally recognized as the child’s legal parent, then he will first need to establish paternity
  • Establishing paternity can be done by filing an Acknowledgment of Paternity (“AOP”) form or via a filed or court ordered paternity test
• File for Custody: If paternity has been established, the father will need to file a petition for custody with the family court that has jurisdiction
  • This petition should outline their relationship with their child and their ability to provide for their child’s needs.
• Attend a Hearing: The court will then schedule a hearing to review the father’s petition and any objections from other parties, such as other family members who may also be seeking custody
  • As mentioned above, the court will utilize the child’s best interest standard when making a custody decision
• Temporary Guardianship: In some cases, the court may appoint a temporary guardian to care for the child while the custody case is being resolved
  • The court may also appoint an attorney ad litem to represent the interests of the child in the custody case
• Final Custody Decision: After considering all of the best interest factors, the court will make a final decision on whether to grant the father custody

If there are any concerns about the father’s ability to provide a safe and nurturing environment for their child, the court will not grant the father automatic custody. Instead, they may appoint a guardian for the child or explore other custodial arrangements.

How Courts Make Custody Decisions

Historically, child custody laws for unmarried parents were not favorable for fathers who sought sole and primary custody of their children. This was true even in cases where the other custodial parent, in this case the mother, had died.

However, both Hawaii and federal laws have now become more unbiased regarding a father seeking sole legal or physical custody of their child, especially in cases where the child’s other parent has passed away.

As mentioned above, child custody decisions in Hawaii will always be based on the child’s best interest standard. The child’s best interest standard is the legal standard that prioritizes a child’s welfare over the wants and desires of the child’s parents.

This means that in Hawaii, what is considered to be best for the child will always be placed over the wants and needs of the parents involved. Specifically, the best interest of the child standard is outlined in the Hawaii Revised Statutes (“HRS”).

That statute details the best interest factors that the court considers when making custody decisions, including:

• The child’s physical, emotional, and psychological needs
• The child’s relationship with each parent and other family members
• Each parent’s ability to provide a stable and nurturing environment
• The child’s own preferences, if they are mature enough to express them
• Any history of abuse, neglect, or domestic violence

All of the above factors will help a court to ensure that the child’s well-being is the top priority in custody decisions.

What Types of Support Should Children Receive?

In Hawaii, children should receive various types of support to ensure their well-being and development, including:

• Emotional Support: Parents should ensure their children have a loving and supportive environment where they feel safe and valued, which includes the presence of caring adults who listen, encourage, and guide them
• Educational Support: Parents should ensure their children have access to quality education that meets their individual needs and helps them reach their full potential, including providing support for special educational needs and extracurricular activities
• Physical Support: Parents should ensure their children have adequate nutrition, healthcare, exercise, and a safe living environment to promote their physical health and development
• Social Support: Parents should ensure their children have opportunities for social interaction with peers and involvement in community activities, which help their children develop social skills and a sense of belonging
• Mental Health Support: Parents should ensure their children have access to mental health services and counseling when needed to address any emotional or psychological challenges they may face
• Financial Support: Parents should ensure their children’s basic needs are met, including food, clothing, shelter, and access to education and healthcare
  • This often involves child support from parents or guardians
• Cultural Support: Parents should encourage connections with their cultural heritage, traditions, and language, which helps foster a strong sense of identity and belonging

All of the above supports are aimed at helping children thrive in a safe, stable, and nurturing environment. Further, such supports are designed to provide a comprehensive foundation for a child’s development and growth.

Why Is It Important To Appoint a Testamentary Guardian of Your Children in Your Will?

Generally speaking, appointing a testamentary guardian in your will is a responsible way of protecting your children’s future and ensuring their care in unexpected circumstances. Other reasons why it is important to appoint a testamentary guardian of your children in your will, include:

• Ensuring Continuity: Appointing a testamentary guardian provides a clear plan for who will take care of your children in situations where both custodians pass away
  • This helps to avoid potential conflicts among family members and ensures that your children are cared for by someone you trust
• Peace of Mind: Knowing that your children will be in good hands can give you peace of mind, and allow you to rest assured that your children will be raised according to your values and wishes
• Legal Clarity: A testamentary guardian designation in your will is legally recognized, which means the court is more likely to honor your choice, reducing the chances of a lengthy and contentious legal battle over guardianship
• Best Interests of the Child: The court will always consider the best interests of the child when appointing a guardian, but by naming a guardian in your will, you can help ensure that the person you believe is best suited to care for your children is chosen
• Financial Management: In addition to naming a guardian, you can also appoint a conservator to manage your children’s finances until they reach adulthood, ensuring that their financial needs are met and their inheritance is protected.

When Should You Consider Choosing a Guardian?

Ideally, it is recommended to consider choosing a guardian for your child in Hawaii as soon as possible, such as when your child is born. Once again, choosing a guardian will ensure that if something unexpected happens to you, you have already thought through who would be the best person to care for your child.

Additionally, it is also a good idea to periodically review and update your guardianship choice to ensure that it still aligns with your wishes. A local attorney in Hawaii will be able to help guide you through Hawaii’s rules regarding naming a guardian.

When Do I Need to Contact a Lawyer?

If you have a child and are wishing to plan for your child’s future care in the case of your illness or injury, then it is recommended that you consult with an experienced Hawaii child custody lawyer as soon as possible. Consulting with an attorney familiar in child custody and estate planning will ensure your child’s continued care and support.

LegalMatch can assist you in setting up a legal consultation with an experienced custody attorney in your area. A lawyer who handles custody cases will be able to help you understand Hawaii’s specific custody and estate laws when it comes to the death of a custodial parent.

An attorney will also be able to help guide you through creating an estate plan, which includes plans for unforeseen circumstances, such as your illness, incapacity, or death. Finally, a custody lawyer will also be able to help you execute any necessary legal documents and represent you in court, should you need representation in the case of the death of a custodial parent.