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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
15-SEP-2025
09:28 AM
Dkt. 21 OPA
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---KP,
Petitioner/Petitioner-Appellant,
vs.
EM,
Respondent/Respondent-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 2PA211000062)
SEPTEMBER 15, 2025
RECKTENWALD, C.J., EDDINS, AND DEVENS, JJ.;
WITH GINOZA, J., CONCURRING SEPARATELY AND DISSENTING,
WITH WHOM McKENNA, J., JOINS
OPINION OF THE COURT BY EDDINS, J.
This child custody case involves the custody and relocation
of two young children. They were born in Utah in 2016 and 2018
to two young adults who had grown up in Utah. The children
moved to Hawaiʻi with their mother, KP (Mother), in December *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
2019. EM (Father) moved to Hawaiʻi a few months later, in March
2020.
In May 2021, Mother sought sole legal and physical custody
of the children. She claimed Father was sexually abusing his
five year-old son and three year-old daughter. In August 2021,
Father sought sole legal and physical custody. He also
requested permission to move with the children back to Utah.
After a three-day bench trial, the court granted custody to
Father, and allowed him to move to Utah with the children.
Mother was granted supervised visitation.
Mother raises three arguments on appeal. First, she argues
that the trial court erred by excluding fact and expert witness
testimony regarding the credibility of the children’s sexual
abuse disclosures. Second, she claims the court erred in
excluding hearsay evidence about the disclosures. Third, Mother
argues that the court abused its discretion in awarding Father
sole custody and allowing him to relocate to Utah with the
children.
We hold that the family court (1) made proper evidentiary
rulings; and (2) did not abuse its discretion in awarding Father
legal and physical custody and allowing him to move with the
children to Utah.
The family court correctly ruled that under State v.
Batangan, it is improper for a witness to testify about the
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credibility of an alleged child sexual abuse victim. 71 Haw.
552, 799 P.2d 48 (1990). The court also correctly precluded
evidence as inadmissible hearsay.
We also hold that the family court did not abuse its
discretion in awarding Father sole legal and physical custody
and approving Father’s relocation to Utah with the children.
The court properly considered the relevant Hawaiʻi Revised
Statutes (HRS) § 571-46(b) (2018) factors. Our review of the
record supports the court’s findings.
We affirm the ICA’s judgment and the family court’s
decision and order.
I.
A. Factual Background
Mother and Father have two children together: a boy, Jack,
and a girl, Grace. (To protect the minors’ privacy, we use
pseudonyms.)
Mother, an only child, was born in Oregon, and raised in
Colorado. She moved to Utah at age sixteen. Father was born
and raised in Utah.
Mother and Father met in Utah as sixteen year-olds and
“connected through mutual drug use.” They both had alcohol and
drug addictions. Their drug use included heroin and
methamphetamine.
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Mother and Father lived with Mother’s parents. Father
reported moving out of his mother’s home because she did not
tolerate drug use. Mother’s parents allowed KP and EM to use
drugs and skip school while living in the home.
Jack was born in November 2016. Mother and Father were
then eighteen years old. After their son’s birth, both stopped
using drugs for almost two years. They continued living with
Mother’s parents until after their second child was born.
Grace was born in March 2018. Mother and Father were
twenty years old. After Grace was born, they moved out of
Mother’s parents’ home in Utah. In November 2018, they
purchased their own home. Father worked in a regional grocery
store warehouse while Mother was a stay-at-home mom.
In early 2019, both relapsed.
KP and EM broke up. Mother moved back in with her parents.
They split custody without a formal custody agreement. The
children spent the night at either Father’s house, the maternal
grandparents’ house, or Paternal Grandmother’s house. Father
moved in with his father and attended an outpatient program.
Then they entered separate in-patient drug rehabilitation
programs. In March 2019, Mother was admitted to a holistic drug
rehabilitation facility in Colorado. It allowed her to care for
the children. Father attended treatment in Utah.
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In December 2019, Mother moved with the children and her
parents to a house in Pāʻia, Maui. The record does not explain
Mother’s parents’ connection to Maui or show whether Mother’s
parents rented or owned the Pāʻia home. Soon Mother relapsed.
In February 2020, Mother sought treatment from a Kahului, Maui
rehabilitation facility.
In March 2020, three months after Mother moved from the
mainland to Maui, Father moved to Maui. He wanted to be part of
his children’s lives. When he moved, he was under the
impression the move was temporary, and they would move back to
Colorado or Utah to co-parent the children.
Father found work at the Maui Dragon Fruit Farm. He earned
$1,500 a month, collected around $400 a month in food stamps,
and received housing through his employer. Father took a second
job. He worked at Cheeseburger in Paradise, and then at Paia
Fish Market in Lahaina.
At the farm, Father lived in the master bedroom of an RV.
That room had a separate entrance. In July 2021, Father’s
employer promoted him to manager. She also offered Father a
three-bedroom, two-bathroom home on the property to use when the
children visited.
In July 2020, Mother sought refuge at a domestic violence
shelter. Mother’s thirty-nine-year-old boyfriend had assaulted
her. On July 18, 2020, Mother reported to Maui police that her
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boyfriend of four months had confined her to a room and
threatened to stab her to death if she left. The two had smoked
methamphetamine earlier that day. The boyfriend punched and
strangled her. The man threatened to kill her and her children.
Against Father’s wishes, Mother had at times let the
children stay with Mother and the boyfriend. The parties
dispute whether the children saw violent acts and drug use when
Mother dated the man.
Weeks later, in August 2020, Mother’s parents (Maternal
Grandmother and Maternal Grandfather) rented a home in Kahakuloa
that the custody evaluator described as an upscale home. Mother
and the children moved in. Maternal Grandmother said they moved
there because “there was a drug house across the street [from
the Pāʻia House].” The custody evaluator reported that they
moved “partly to get her away from the drug-related culture
[Mother] was exposed to in Paia.”
Soon after they moved in, still in August 2020, Maternal
Grandmother and Mother purportedly saw the children engaged in
“sexually suggestive behaviors.” Maternal Grandmother told
Mother she saw “red flags.” Mother also later reported to Child
Welfare Services (CWS) “[that Jack] made humping movements, [and
the children put their] butts in each other’s faces, thinking it
was funny.”
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Mother hatched a plan. That same month, Mother told Father
she had video surveillance of him sexually abusing the children
at her parents’ previous house in Pāʻia. (She did not.) Father
denied sexually assaulting his son and daughter. Later he said
that he didn’t know where Mother’s accusation came from, and
that he knew he hadn’t done anything wrong. Months later Mother
told a custody evaluator that she had lied to Father about the
footage because she “hop[ed] that [Father] would admit what he
did.”
Father reported that after the false accusation, he did not
feel safe. He visited with the children in public parks or at
the maternal grandparents’ home with supervision. Only twice
did he have the children at his home for overnight visits.
Father testified that in December 2020, Mother said she
would give him custody and allow him to take the children to
Utah. “[S]he’s had enough and she doesn’t want to be a mother
anymore . . . [she] told me that she wants me to take the kids
full time and if I want to do that in Utah, I can.” He had
previously shared this information with the custody evaluator,
Sandy Shiner (CE Shiner).
Father gave notice to the dragon fruit farm and the Paia
Fish Market that he was returning to Utah with his children.
Father’s employer at the fruit farm wished him well. She
purchased tickets for Father and the two children to return in
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early January 2021. But just hours after Father quit his food
service job, Mother called. The plan “isn’t happening,” she
said. The children and Father therefore remained in Hawaiʻi.
Three months later, in April 2021, Maternal Grandmother
called CWS. Father had been sexually abusing the children, she
reported. She “cit[ed] various sexualized behaviors by the
children that started in August of 2020.” Maternal Grandmother
also disclosed neglect for “failure to protect” by Mother.
CWS interviewed Mother. Mother informed CWS that she did
not believe Father posed a danger to the children. CWS
suggested a Children’s Justice Center interview. Mother
declined the interview, the CWS worker reported, because “she
believes [the behavior the children have been displaying] is not
in relation to anything the father has done.”
Father believed that Maternal Grandmother’s report was
motivated by her wish to gain custody of the children and to
prevent Father from returning with them to Utah.
B. Family Court Proceedings
At the time of the following proceedings, Jack was around
four and Grace was around three.
Judge Keith E. Tanaka of the Family Court of the Second
Circuit presided over the custody case from May 6, 2021 to
around June 15, 2021. Judge Adrianne N. Heely presided from
June 16, 2021 to around January 13, 2022. Then, around January
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13, 2022, Judge Lance D. Collins replaced Judge Heely as the
presiding judge.
On May 6, 2021, Mother filed a “Petition for Custody,
Visitation, Support Orders After Voluntary Establishment of
Paternity” in family court. Mother sought legal and physical
custody of the children, and requested that Father be denied
visitation with the children “until further order of the Family
Court.”
On May 26, 2021, Mother moved for pre-decree relief. She
sought sole legal and physical custody of the children, and
requested that Father (1) “be ordered to undergo substance abuse
and mental health assessments,” (2) “be allowed supervised
visitation only,” and (3) “be forbidden from any threats or harm
to [Mother] or the children, and from taking the children off
island, like to paternal grandmother and family in the
continental [United States].”
On June 3, 2021, the family court held a hearing on
Mother’s custody petition, and pre-decree relief motion. The
court deferred its custody determination to a future hearing
pending a custody evaluation. It temporarily granted Father
unsupervised visitation with the children from 10 a.m. to 4 p.m.
on weekends, subject to Father’s negative drug test, and
referred Mother’s allegation of “inappropriate touching” of the
children to CWS for further investigation and report.
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Ten days later, on June 13, 2021, Mother reported to the
Maui Police Department (MPD) that the children were “sexually
assaulted by their father” in April 2021. Sexually assaulting a
child ranges from a class A felony, punishable by twenty years
of imprisonment, to a class B felony punishable by a ten-year
term of imprisonment, to a class C felony punishable by a fiveyear term of imprisonment. HRS § 707-730(1)(b) and (2) (2014),
§ 707-731(1)(a) (2014), § 707-732(1)(b) (2014); HRS § 706-660
(2014 & Supp. 2016), § 706-659 (2014).
During Mother’s interview with MPD, the responding officer
noted that Mother changed her statements over the course of the
interview and failed to make eye contact with the officer during
the interview. The officer reported that “she was observed to be
laughing and smiling at times and not upset over the allegations
involving her children.”
Father chose to make a statement to police two hours later.
Father denied sexually touching his own children.
MPD Detective Oran Satterfield was later assigned to
investigate Mother’s allegations.
Thereafter, between June 18, 2021 (five days after her
report to MPD), and October 20, 2021, Mother filed four sets of
Ex Parte Petitions for a HRS § 586-4 (2018 & Supp. 2021)
temporary restraining order (TRO) on behalf of each child. All
eight petitions alleged a threat of child sexual abuse by
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Father. The family court dismissed all but one petition. (The
court granted one six-month protective order, which the family
court dismissed nearly four months later, after multiple
continuances and the custody trial.)
On June 29, 2021, the Children’s Justice Center (CJC)
interviewed the children. Neither child made disclosures of
sexual abuse. CWS supervisor Annie Reinecke (SW Reinecke) and
MPD Detective G. Katayama attended the CJC interview. They both
reported that the children made no disclosures about sexual
assault during the forensic interview.
The next day, Mother filed another set of TROs on behalf of
the children against Father. The TROs were denied without a
hearing.
On July 8, 2021, CWS submitted a ten-page court-ordered
report assessing “allegations of sexual abuse/threat of sexual
abuse” of the children by Father, and “physical neglect/threat
of physical neglect (failure to protect)” of the children by
Mother, pursuant to HRS § 586-10.5 (2018). CWS concluded that
“[s]exual abuse and threat of sexual abuse of [the children] by
[Father] is not confirmed.” (Emphasis added.)
The report stated that “[t]here is insufficient evidence to
determine the children have been molested” and that “there is
too much ambiguity with respect to context, who, what, where,
when and how to determine abuse.” CWS deemed audio and video
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recordings of alleged disclosures (taken and provided by Mother)
as “highly suggestible and leading.”
CWS also had concerns about Mother’s boyfriends. “The
children have also been exposed to Mother’s boyfriends, of whom
no information is given with exception that there had been
exposure to domestic violence.” The report recommended that both
parents undergo a substance abuse assessment and random drug
testing to verify sobriety, and to attend a co-parenting
program.
On July 30, 2021, Mother took the children to the Maui
Memorial Medical Center emergency room. She requested a sexual
assault examination because Grace had allegedly expressed pain
to her vagina. A MPD sergeant called Detective Satterfield and
informed him of the request. Detective Satterfield called
Mother for more information. She wanted a sexual assault exam
because Grace expressed pain to her vagina area five days after
an unsupervised visit with Father. Detective Satterfield then
scheduled a same-day forensic medical examination.
Sexual assault nurse examiner Jennifer Baumstark (Nurse
Baumstark) examined both children. Grace allowed Nurse
Baumstark to conduct a physical evaluation, and take photos of
her anus and perineum. Grace did not have any injuries. Mother
helped the nurse collect rectal DNA samples from both children
to be sent for testing. Jack refused a physical evaluation and
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to have pictures taken, but let Mother take rectal DNA swabs of
the anal area under Nurse Baumstark’s supervision. The tests
were inconclusive.
During the visit, Jack stated to the examiner that his
father “touches [his] butt[.]” Nurse Baumstark shared this
disclosure with Detective Satterfield. Detective Satterfield
later submitted Nurse Baumstark’s medical reports as part of his
report to the Office of the Prosecuting Attorney.
On August 5, 2021, court officer and CE Shiner filed a
fourteen-page custody evaluation report with the family court
based on interviews and home-visits. CE Shiner interviewed
Mother, Father, and other collateral contacts including Maternal
Grandmother, Maternal Grandfather, Paternal Grandmother, and
Father’s employer at the farm.
CE Shriner recommended joint legal and physical custody.
Regarding Father, she concluded that he “appears to be a caring,
nurturing parent, and the children appear comfortable with him.”
“Father has a home and much family support in Utah if the Court
decides that he should be allowed to move back to Utah with the
children. Meanwhile, he has found a job and set up at least
temporary housing for himself and the children while living on
Maui.” CE Shiner stated that if the court determined that the
children should move with Father to Utah, she would not
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recommend that Mother return to Utah to share custody with
Father on her own without Mother’s parents.
As for Mother, CE Shiner reported that Mother also appears
to be a caring, nurturing parent, and that Mother’s parents
provide full support in raising the children on Maui. “Due to
[Mother’s] history of getting involved with abusive partners and
relapsing on drugs when she is not closely monitored by her
parents,” CE Shiner concluded, “it is not recommended that she
have custody of the children if she is living on her own until
there is further order of the Court.”
On August 12, 2021, Father filed a “Motion for Emergency
Custody and Relocation.” He requested temporary emergency
custody of the children and permission to relocate with the
children to Utah. After Mother filed her response, the court
granted several continuances, extending the trial date to
January 2022. Father’s motion was not heard until trial began
on January 28, 2022.
Meanwhile, without a court order or Father’s consent,
Mother began taking the children to play therapy with a private
therapist, Dr. Goldberg. Mother’s attorney had referred Mother
to her, Dr. Goldberg believed. On August 13, 2021 – the day
after Father’s emergency petition – the children began play
therapy. During the children’s second visit, around August 25,
2021, both children purportedly made disclosures that Father
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“put his finger up [their] butts.” As a mandatory reporter, Dr.
Goldberg reported the incident to CWS.
On September 10, 2021, Detective Satterfield and CWS social
worker Leslie Armstrong (SW Armstrong) interviewed Dr. Goldberg.
Detective Satterfield testified that the purpose of the
interview was to “get more information about what happened in
that therapy session.” Dr. Goldberg confirmed the disclosures,
noting that for both children, “[w]e were building [with toys]
and [the disclosure] kind of came out of nowhere.”
On October 20, 2021, Mother filed another TRO on behalf of
Jack against Father – now based on the children’s disclosures to
Dr. Goldberg. It was the seventh order for protection petition
she had filed against Father. Mother alleged that on October
16, 2021, following an unsupervised visit with Father, Jack
disclosed to Dr. Goldberg that Father touched his “peepee”
earlier that day. Mother’s petition also alleged that Jack
previously disclosed sex abuse to Dr. Goldberg, that she
reported Jack’s disclosure to the police, and that Dr.
Goldberg’s reporting ultimately required Detective Satterfield
and SW Armstrong to interview Dr. Goldberg on September 10,
2021.
The court issued a same-day TRO for Jack against Father, to
expire April 18, 2022. The TRO also prohibited Father from
contacting Grace and maternal grandparents.
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Based on his interview with Dr. Goldberg, Detective
Satterfield referred the children for another forensic
interview. On October 25, 2021, the Wailuku Children’s Justice
Center re-interviewed the children. During those interviews,
unlike during the first set of June 2021 CJC interviews, the
children made disclosures. According to the CWS report
summarizing the interviews, when asked why he was at the
interview, “Jack said it was to tell secrets.” “Jack reported
that ‘daddy touches my butt and my peepee[,]’ [and Jack] said
this happened at the Dragon Fruit Farm and was not continuing to
happen.” The report also explained that “Grace reported ‘Daddy
touches my butt and Jack’s butt[.]’ Grace said it has happened
at the Dragon Fruit Farm and the park. The children were not
able to expand on these disclosures at all, so it is unclear if
this is in reference to helping the children toileting or
bathing or if this is indeed inappropriate touching.”
On October 29, 2021, CWS submitted a three-page report
requested by the court, relating to the October 20, 2021 TRO.
The report confirmed the “[t]hreat of sex abuse” to children by
Father. (SW Armstrong later testified that a “threat” of abuse
does not mean that evidence confirmed actual abuse occurred – it
only establishes “a possibility of that harm happening.”) The
report summarized disclosures made during the forensic
interviews of the children at the CJC, but noted that because
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“[t]he children were not able to expand on these disclosures,”
it was unclear if the disclosures were in reference to Father
“helping the children [with] toileting or bathing or if [the
disclosures were] indeed [in reference to] inappropriate
touching.”
On November 8, 2021, the court issued an “Order for
Protection” on behalf of Jack and against Father, with an
expiration date of May 8, 2022. One month later, on December 8,
2021, Judge Heely filed an amended protective order which
appeared nearly identical to her original protective order, with
the same expiration date of May 8, 2022.
Around January 13, 2022, Judge Lance D. Collins replaced
Judge Heely as the presiding judge in the case.
C. The Trial
On January 28 and 31, 2022 and February 15, 2022, the court
held a bench trial to determine custody, relocation, and
visitation in response to Mother’s May 2021 custody petition and
Father’s August 2021 emergency custody and relocation motion.
Thirteen witnesses testified. Besides Father and Mother,
Detective Satterfield, Father’s co-worker Cameron Richards, SW
Armstrong, Nurse Baumstark, CWS social worker Christianna
Bhader, psychiatrist Dr. Brian Teliho, SW Reinecke, CE Shiner,
psychologist Dani Riggs (Psychologist Riggs), Paternal
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Grandmother, and Dr. Goldberg testified. Maternal Grandmother
and Maternal Grandfather did not testify.
The family court had lots of information to decide this
case. The parties stipulated into evidence many exhibits. That
evidence included photographs, pleadings, “reports received by
the court from Child Welfare Services,” “reports received by the
parties from the court-appointed supervised visit monitor,”
“reports received by the court from the court-appointed custody
evaluator,” “all exhibits that consist of Maui Police Department
reports,” “certificates of completion [of drug rehabilitation],”
and “recordings made of interviews with the subject minor
children at the Children’s Justice Center.”
Next, we outline the trial’s relevant evidentiary
exchanges.
1. Detective Satterfield
Father called Detective Satterfield, a MPD sex assault unit
detective. Detective Satterfield testified that he was assigned
to investigate a report of possible sexual abuse of the children
by Father. He later submitted his investigation to the Office
of the Prosecuting Attorney for review in late 2021. As of the
February 2022 trial, Detective Satterfield testified that he
hadn’t heard anything from the Prosecutor’s office regarding the
case. He added that during his investigation, he did not
directly interview the children.
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During cross-examination, Mother’s counsel asked Detective
Satterfield if he believed the children were sexually abused.
The court sustained Father’s counsel’s objection, basing that
ruling on Batangan:
[Mother’s Counsel:] Okay. So do you believe these
children were sexually abused?
[Father’s Counsel:] Objection, your Honor; calls for
an opinion regarding the ultimate issue.
[The Court:] Yeah, I’m going to sustain it because I
think it’s pretty clear and the case law [State v.
Batangan] that witnesses cannot assist the [trier] of fact
in determining this particular issue.
[Mother’s Counsel:] I’m just asking if he believes -–
[The Court:] I understand. And [State v. Batangan] is
directly on point of this issue and it’s not allowed.
[Mother’s Counsel:] Okay. No further questions.
2. Nurse Baumstark
Mother’s expert witness Nurse Baumstark testified that she
conducted a sexual assault forensic examination of Grace, and
that Jack refused an examination. Mother had requested a sexual
assault examination after alleging that Grace reported pain to
her vagina five days after visiting Father. Nurse Baumstark
testified that Grace did not have any injuries, and that rectal
DNA swabs were inconclusive. She also relayed that during the
examination, Jack disclosed to her that Father “put his finger
in my butt.” The nurse later reported the disclosure to
Detective Satterfield. Mother’s counsel then asked if Nurse
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Baumstark believed Jack. The court sustained Father’s counsel’s
objection. Again, per Batangan.
[Mother’s counsel:] Did they appear to -– were there
any other disclosures by the boy besides “dad put his
finger in my butt”?
[Nurse Baumstark:] No.
[Mother’s Counsel:] Do you have any reason -– do you
have any reason not to believe this child when he told you
what his father did?
[Nurse Baumstark:] No, I –-[Father’s Counsel:] I’m sorry. I’m going to object.
[The Court:] Hold on just a second. There’s an
objection . . . what’s the objection?
[Father’s Counsel:] Well, she was posed as an expert
in sexual assault examinations (inaudible). She’s
testified so far but it’s going beyond the (inaudible)
started talking about it and it also violates, you know,
the issue of ultimate issue.
[Mother’s Counsel:] Asking if she’s -- if she
believes them, has a reason to believe them, if they
present as if –-[Father’s Counsel:] She would be giving an opinion
as to their credibility.
[Mother’s Counsel:] I don’t see anything wrong with
that.
[The Court:] Yeah, I think that question falls under
[State v. Batangan] so I’m not going to allow it.
[Mother’s Counsel:] No further questions.
3. Psychologist Riggs’ Testimony
Mother called another expert witness. Psychologist Dani
Riggs testified generally about child sexual abuse. He said
that he had reviewed CE Shiner’s custody evaluation report, MPD
records, “some TROs,” the October 29, 2021 CWS Report, a
protective order, psychological evaluation of Mother, and
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psychosexual evaluation of Father. Mother’s counsel asked
whether repeating allegations (as the children did in this case)
is a “normal” response. The court sustained Father’s counsel’s
objection.
[Mother’s Counsel:] Thank you. Is it your
experience that very, very young children would repeat the
same thing over and over again in their disclosures?
[Psychologist Riggs:] Yes.
[Mother’s Counsel:] Is that suspicious to you or is
that what you would consider to be a normal response?
[Father’s Counsel:] I’m going to (inaudible).
[Mother’s Counsel:] Objection.
[The Court:] Hold on a second.
[Psychologist Riggs:] I’m sorry.
[Father’s Counsel:] I’m going to renew my objection.
There was –- she’s trying to back door what has been
submitted (inaudible).
[The Court:] Okay. So [State v. Batangan] says that
an expert testimony explaining seemingly bizarre behavior
of a child sex abuse victim is helpful. That opinions on
the truthfulness or believability of a child victim report
of abuse is of no assistance to the fact finder.
[Mother’s Counsel:] Is it no [sic]?
[The Court:] Is of no assistance to the fact finder.
So to the extent that Mr. Riggs is explaining seemingly
bizarre behavior of a child sex abuse victim, that is
permitted, but he is not permitted to render an opinion on
truthfulness or believability of the child victim’s
reported abuse.
[The Court:] You can elicit opinion testimony from
him that explains seemingly bizarre behavior, but you can’t
ask him questions that indirectly are seeking opinion of
truthfulness or believability.
[Mother’s Counsel:] I’m not asking him for
truthfulness or believability. I’m just asking if that’s a
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[Mother’s Counsel:] Yeah, I’m asking if this is a
normal response, is all –-[The Court:] Well, so that goes to truthfulness and
believability, so he can give an opinion about behavior of
child sex abuse victims in general, but he can’t give an
opinion on truthfulness or believability. So if you’re
asking him if in this specific instance if what the
children are doing is normal –
[Mother’s Counsel:] (Inaudible) response to trauma.
[The Court:] It’s touching on the truthfulness and
believability. So if you can rephrase the question, it may
be appropriate, but I’ll have to sustain the objection.
4. SW Armstrong’s Testimony
DHS social worker Armstrong testified that she conducted
investigations relating to Mother’s concerns that Father may be
sexually abusing the children and, through these investigations,
contributed to the July 8, 2021 and October 29, 2021 CWS reports
to the court. Father’s counsel asked whether SW Armstrong
believed that Father abused the children. Counsel also asked
her whether she told Father that she believed he had abused the
children. The court sustained Mother’s objection to both
questions under Batangan.
[Father’s Counsel:] Did you form an opinion at that
time whether or not there was any -- at that time whether
or not there was any sexual abuse of the children by
[Father]?
[Mother’s counsel:] Objection, your Honor; again, it
doesn’t –- it calls for a conclusion. It goes beyond her
report.
[The Court:] I will – yeah, I’ll sustain that
objection because I think that falls within the [State v.
Batangan] issue.
[Mother’s Counsel:] Thank you.
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[Father’s counsel:] Did you have any conversation
with [Father]?
[SW Armstrong:] Yes.
[Father’s Counsel:] And did you convey to him
whether or not you believed that there had been any sexual
abuse to the children?
[Mother’s Counsel:] Objection, your Honor.
[The Court:] I’m going to sustain that. I still
think that that’s within the [State v. Batangan] scope.
5. Dr. Goldberg’s Testimony
Mother called Dr. Goldberg as a fact witness. Dr. Goldberg
testified that she provided therapy to the children. Shortly
after the start of Dr. Goldberg’s direct examination, Father’s
counsel objected to Dr. Goldberg testifying as to what the
children disclosed to her during their therapy sessions, citing
Hawaiʻi Rules of Evidence (HRE) Rule 804(b)(6). Mother didn’t
quarrel with the 804(b)(6) argument. Rather, she argued that
per HRE Rule 803(b)(24), “reliable trusted sources are allowed
to speak on behalf of the children that have been abused.” The
court held that because Dr. Goldberg was not called as an
expert, she could only testify “based on her personal
knowledge . . . and not as an expert.”
[Father’s Counsel:] So the rule that I’m referring
to is 804(b)(6), a statement made by a child under the age
of 16 describing an act of sexual contact or penetration or
physical violence (inaudible) performed with or against the
child by another if the Court determines the content and
circumstances of the statement provide strong assurance of
trustworthiness . . . . I don’t know. She hasn’t provided
a foundation for any of those things.
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[Mother’s Counsel:] I’m happy to do that, your
Honor, if the Court will allow me time.
[The Court:] Okay. So I think before we get to
that, that foundation will have to be laid. I was under
the impression that experts were previously agreed that
experts who testified were experts [sic] but there seems
like there might be a disagreement about what Dr. Goldberg
was supposed to be an expert on, and so that’s also another
factor because conceivably, the hearsay that she’d be
speaking to would be something that she’s basing her expert
opinions on. And so if she’s not qualified as an expert in
a certain area, she may not be allowed to testify about any
of this at all. So can we first get clarification what Dr.
Goldberg is an expert in.
[Mother’s Counsel:] Certainly. And you’re right.
That was agreed to by stipulation of the parties. I
apologize, your Honor. We did not list Dr. Goldberg as an
expert.
[The Court:] Okay. So then I guess there’s no
agreement that she’s an expert. What is Dr. Goldberg going
to be testifying on?
[Mother’s Counsel:] She’ll testify that she provided
therapy to the children and their response to that therapy,
which included disclosures of sex abuse and more details of
sex abuse than from disclosures to other professionals.
And as a professional, we would say that she is a trusted
reliable source and should be able to repeat what the
children said.
(Emphases added.)
The court then allowed Dr. Goldberg to testify as to her
observations of the children’s physical behavior during therapy,
before Father’s counsel objected to Dr. Goldberg describing what
the children disclosed to her. Judge Collins sustained Father’s
objection. He stated, “I think under [HRE] Rule 803(a)(1),
unless the statement is being offered against [Mother], I’m
going to have to sustain the objection because otherwise it’s
inadmissible hearsay.”
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6. Family Court Order
After trial, on March 28, 2022, the family court issued its
“Findings of Fact, Conclusions of Law, Decision and Order”
granting sole custody and relocation to Father, and supervised
visitation to Mother. The court made 106 findings of fact
(FOFs) and twenty-five conclusions of law (COLs).
FOFs 1 through 53 outlined Mother’s and Father’s
backgrounds and social histories. Those FOFs described how
Mother and Father met in Utah as teenagers, started using drugs,
had children at age eighteen, and had entered different
rehabilitation programs over the years. The court made findings
regarding the couple’s separation, Mother’s move to Maui with
her parents, and the parties’ present residential, employment,
and sobriety situations. It also set forth findings regarding
Father’s proposed living situation with the children in Utah.
FOFs 65 through 101 detailed Mother’s allegations of sexual
abuse from April 2021 through the family court proceedings.
FOFs 102 and 103 determined that both parents have the potential
to relapse, but found that Father has “deeper and clearer
insight into his addiction, his present state[, and] his history
of drug use.”
Last, FOFs 104-106 found that based on clear and convincing
evidence, Mother abused court processes by filing multiple TROs
that were later denied for insufficient evidence. (The December
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8, 2021 amended protective order was dissolved by the court’s
decision and order.)
The family court concluded that Father could provide a
stable, safe, and wholesome home for the children in Utah. In
contrast, Mother was not presently a fit or proper parent who
could do the same. Father’s relocation plan, the court
concluded, “is realistic, credible[,] and sustainable.” Last,
the court determined, Mother’s conduct “demonstrates she is
unable to act in the best interest of the minor children and
that unsupervised visitation of the children would presently be
detrimental to their best interest,” and that her “actions
demonstrate that either she is unable to separate her needs from
the minor children or she is unable to protect the children from
her parents’ needs and wants.”
On April 7, 2022, Mother filed a “Motion for
Reconsideration, Clarification and Further Hearing[,]” pursuant
to Hawaiʻi Family Court Rules (HFCR) Rules 59, 60, and 10. The
court denied Mother’s reconsideration motion.
D. ICA Proceedings
Mother appealed. She claimed that “Judge Collins erred as
a matter of law, and abused his discretion” by (1) dissolving
the December 8, 2021 amended protective order, (2) “grant[ing]
Father sole custody and relocation to Utah with the children”;
and (3) “limit[ing] Mother to supervised visitation of uncertain
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time, place and duration.” She also argued that Judge Collins
violated Mother’s due process rights and fundamental liberty
interest in the care, custody, and control of the children by
(1) “limiting this case to a two-day trial,” (2) “refusing to
admit evidence regarding the credibility of the children’s
disclosures[,]” and (3) precluding testimony and evidence on
hearsay grounds.
Father argued that the court did not err in awarding him
sole legal and physical custody. He maintained that Judge
Collins’ “findings of fact set forth more than a sufficient
basis for his conclusions that Father is a fit and proper parent
who can provide the children with a stable, wholesome, and safe
home.”
The ICA affirmed the family court’s decision and order, and
its reconsideration denial. It held that the family court did
not abuse its discretion in dissolving Judge Heely’s amended
protective order.
The ICA also held that “the family court did not err in
awarding [F]ather sole physical and legal custody, and granting
[F]ather permission to relocate and return to the State of Utah
with the children. The family court made sufficient findings
and conclusions, based on the record evidence, that this would
be in the children’s best interest.”
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E. Supreme Court Proceedings
Mother appealed. We accepted cert.
First, Mother argues that the court’s refusal to admit
“critical” trial testimony pursuant to Batangan resulted in an
unfair trial and a violation of her due process rights. Mother
claims the court erred by excluding expert and lay testimony
relevant to whether sexual abuse happened. These issues, she
maintains, are relevant to the court’s custody determination.
Second, Mother asserts that the court erred by precluding
hearsay testimony from Dr. Goldberg because HRE Rules 803(b)(24)
and 804(b)(6) applied. She also claims the court erred in
refusing to admit into evidence the transcript of Detective
Satterfield’s interview with Dr. Goldberg.
Last, Mother maintains that the ICA erred in “summarily”
affirming the family court’s decision to dissolve Judge Heely’s
amended protective order, grant Father sole custody and
relocation to Utah, and limit Mother to supervised visitation
based “solely” on her request for said protective orders. She
claims that by allowing Father to relocate the children to Utah
and denying Mother unsupervised visitation, the court “intended
to remove her from any meaningful role in her children’s lives.”
Mother argued that the findings supporting the court’s
conclusions were “clearly erroneous.” She insists that the
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court based its decision “solely” on her misuse of process in
bringing “false allegations of abuse.”
We hold that the family court properly precluded witness
testimony regarding the credibility of the children’s
disclosures. Per Batangan, “expert testimony on a witness’
credibility is inappropriate” and “conclusory opinions that
abuse did occur and that the child victim’s report of abuse is
truthful and believable . . . should not be admitted.” 71 Haw.
at 557-58, 799 P.2d at 51-52. The Hawaiʻi Rules of Evidence
govern family court proceedings. See In re ASK, 152 Hawaiʻi 123,
127, 522 P.3d 270, 274 (2022). Batangan applies. Thus, because
Mother’s counsel asked the witnesses whether they believed the
children - in other words, whether the children’s disclosures
were credible – the family court properly sustained Father’s
objections to their testimony.
We also hold that Batangan applies to credibility testimony
by non-expert witnesses. See In re Doe, 70 Haw. 32, 35, 40, 761
P.2d 299, 301, 304 (1988). Thus, we conclude that the court did
not err in sustaining Father’s counsel’s objection to fact
witness Detective Satterfield’s testimony regarding whether he
believed the children. See id.; Batangan, 71 Haw. at 558, 799
P.2d at 52.
Second, we hold that the family court did not err in
excluding Dr. Goldberg’s testimony regarding the children’s
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disclosures during play therapy. We hold that Mother failed to
meet the HRE Rule 804(b)(6) and HRE Rule 803(b)(24) hearsay
exception requirements. And because the transcript of Dr.
Goldberg’s interview with Detective Satterfield describing the
children’s disclosures was admitted as an exhibit, even if the
court erred, the omission constituted harmless error. In re
Doe, 100 Hawaiʻi 335, 346 n.23, 60 P.3d 285, 296 n.23 (2002).
Last, Mother’s arguments that the court based its decision
“solely” on Mother’s alleged abuse of process in filing multiple
TROs lacks merit. The court exhaustively detailed its many
reasons justifying the custody order. The court did not
“solely” rely on “abuse of process” findings to award Father
custody.
We hold that the family court did not abuse its discretion
in awarding Father sole custody and allowing him to relocate to
Utah with the children. See HRS § 571-46(b); Fisher v. Fisher,
111 Hawaiʻi 41, 50, 137 P.3d 355, 364 (2006). The family court
properly considered the relevant HRS § 571-46(b) factors and did
not err in concluding that relocation with Father was in the
best interest of the children.
The family court’s findings and conclusions were supported
by sufficient evidence. First, despite allegations, there was
no finding of sexual abuse of the children by Father. See HRS
§ 571-46(b)(1) (“Any history of sexual or physical abuse of a
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child by a parent.”). As explained below, evidence supports the
family court’s following findings. Father has repeatedly denied
any sexual touching or abuse of the children. In court, he
denied sexually assaulting his son and daughter. Mother
initially did not believe Maternal Grandmother’s April 2021
reports of sexualized behaviors to CWS, and declined to allow
the Children’s Justice Center to interview the children.
Mother’s report of sexual abuse to MPD was initiated ten days
after her unsuccessful June 3, 2021 motion for temporary
custody. During Mother’s interview with MPD, the responding
officer reported that Mother changed her statements and acted
strangely. She failed to make eye contact, the officer wrote,
and “she was observed to be laughing and smiling at times and
not upset over the allegations involving her children.”
The court further found that CWS did not confirm sexual
abuse. CWS was unable to rule out toileting and bathing
activities, pinworms causing pain in the buttocks, or exposure
to Mother’s ex-boyfriends or other family members as the cause
of the children’s statements. The children did not make any
disclosures of sexual or inappropriate sexual touching by Father
during their first Children’s Justice Center forensic interview.
Based on a second CJC interview, where the children disclosed
Father touching their privates, CWS was unable to rule out
toileting or bathing assistance as the cause of the disclosures
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because “[t]he children were not able to expand on [the]
disclosures at all.”
Regarding the alleged sexualized behavior exhibited by the
children, the court found that “[t]here is no evidence that
Mother or her family sought to rule out any of the other adults
in the children’s lives.” The record supports that Mother and
Maternal Grandmother’s reports of post-August 2020 sexualized
behavior surfaced shortly after Mother allowed her children to
visit with her nearly forty-year-old ex-boyfriend who smoked
methamphetamine with Mother, assaulted Mother, and threatened to
kill Mother and her children.
Second, the record supports that by constantly interviewing
the children and conducting leading interviews of the children
regarding sexual abuse, Mother was unable to separate the
children’s needs from her own. See HRS § 571-46(b)(12) (“Each
parent’s actions demonstrating that they separate the child’s
needs from the parent’s needs.”). Evidence supports the court’s
finding that Mother coached the children to make statements
regarding inappropriate touching by Father. Nearly every
professional evaluating the allegations expressed concern that
Mother’s questioning of her children was suggestive and leading.
SW Reinecke also reported observations that caused her to
question Mothers’ mental health. SW Reinecke expressed concern
about Mother filming and submitting leading videos of her asking
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children leading questions about sexual assault. She was also
worried about Mother’s behavior related to the Children’s
Justice Center forensic interviews. Mother expressed urgency
about the interviews, then canceled the CJC’s first interview,
and later rescheduled. During the June 29, 2021 interview,
Mother nearly canceled the interview when she learned she could
not be in the room during the interview. This concerned SW
Reinecke.
The record also supports that given Maternal Grandmother’s
desire to gain custody of the children and her interference with
Father’s relationship with his children, Mother was unable to
protect her children from Mother’s parents’ needs.
Third, the family court’s conclusion that Mother has an
underdeveloped understanding of her addiction is supported by
evidence of Mother’s past drug use, Mother’s testimony before
the court regarding her drug use, and documentation of Mother’s
misrepresentation or denial of drug use to a court officer.
See HRS § 571-46(b)(13) (“Any evidence of past or current drug
or alcohol abuse by a parent.”). The evidence supports that
Father has better behavioral insight into his sobriety than
Mother.
Fourth, in assessing the overall quality of the parentchild relationship between Father and his children, sufficient
evidence supports a finding that Father had a healthy
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relationship with his children. See HRS § 571-46(b)(3) (“The
overall quality of the parent-child relationship.”).
Fifth, evidence supports a finding that Father is better
equipped to support the physical health needs of the children
because Mother neglected to obtain health insurance or regular
health care for the children. See HRS § 571-46(b)(6) (“The
physical health needs of the child.”).
The children suffered from pinworms. Yet Mother and
Maternal Grandmother did not seek pediatric medical care to
treat the children’s discomfort. Upon learning this, SW
Reinecke recommended that Mother seek medical care for the
children to address the pinworm problem. She also sought to
rule out the pinworms as the source of the children’s buttock
pain reports. Mother and Maternal Grandmother ascribe to
naturopathic medicine, the evidence suggests, and do not take
the children to regular medical visits.
Sixth, the record supports the family court’s finding that
Mother’s accusations harmed the children’s connection to their
Father. See HRS § 571-46(b)(11) (“Each parent’s actions
demonstrating that they allow the child to maintain family
connections through family events and activities.”). After
Mother accused Father of abuse, Father no longer wanted to visit
with his children at maternal grandparents’ home. Father also
feared helping his children with their basic needs. He thought
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that helping the children bathe or use the bathroom would lead
to more accusations.
Seventh, the record supports the court’s holding that
Father’s relocation plan was “realistic, credible, and
sustainable,” and in the best interest of the children.
Evidence supports a finding that prior to separation from
Mother, Father was actively engaged in parenting the children.
See HRS § 571-46(b)(4) (“The history of caregiving or parenting
by each parent prior and subsequent to a marital or other type
of separation.”). For two years, after the birth of their first
child, Jack, Father and Mother parented together. The reports
and testimony indicated that Father has a loving, positive
relationship with his children.
As for the proposed Utah move, the court did not err in
finding that Father’s plan was realistic, credible, and
sustainable. Father has significant family support, childcare
assistance, and re-employment prospects. Paternal Grandfather
offered an apartment type portion of the house for Father and
the children to live in, near Paternal Grandmother and Father’s
siblings’ homes. The children were born in Utah, and were
familiar with their Utah family members.
Last, we hold that the record supports clear and convincing
evidence of Mother’s wilful misuse of the protection from abuse
process. The family court could reasonably infer from
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substantial evidence that it was highly probable that Mother
filed the four sets of TROs to gain an advantage in the custody
proceedings. See HRS § 571-46(b)(16); Iddings v. Mee-Lee, 82
Hawaiʻi 1, 13, 919 P.2d 263, 275 (1996); Fisher, 111 Hawaiʻi at
46, 137 P.3d at 360. Thus, the family court’s findings related
to misuse of the protection from abuse process were not clearly
erroneous, and the court did not abuse its discretion in
weighing the HRS § 571-46(b)(16) factor in Father’s favor.
Thus, the record supports the family court’s holding that
awarding Father sole legal and physical custody of the children,
granting the relocation request, and awarding Mother supervised
visitation serves the best interest of the children. We hold
that the court grounded its findings in the HRS § 571-46 factors
and based its findings on sufficient evidence. The family court
did not abuse its discretion.
Therefore, we hold that the family court (1) did not err in
sustaining the challenged objections at trial, and (2) the court
did not abuse its discretion in awarding Father sole legal and
physical custody and allowing him to relocate with the children
to Utah.
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II.
A. The family court did not err in sustaining objections to
testimony regarding the credibility of the children’s
disclosures
1. The court did not err in excluding testimony by Nurse
Baumstark, Psychologist Riggs, SW Armstrong, and
Detective Satterfield, pursuant to Batangan
The family court precluded some testimony by expert
witnesses Nurse Baumstark, SW Armstrong, and Psychologist Riggs,
and fact witness Detective Satterfield. Each time, the court
cited Batangan to exclude the witnesses’ testimony.
We hold that the family court properly ruled.
“Evidentiary rulings are reviewed for abuse of discretion,
unless application of the rule admits of only one correct
result, in which case review is under the right/wrong standard.”
State v. Ortiz, 91 Hawaiʻi 181, 189, 981 P.2d 1127, 1135 (1999).
As a general rule, witnesses may not testify about another
witness’ veracity. State v. Maluia, 107 Hawaiʻi 20, 24, 108 P.3d
974, 978 (2005) (“were-they-lying” questions, are improper,
among other things, because they encroach on the jury’s
credibility assessments, and they “are argumentative and have no
probative value”). Witness testimony about the credibility of
another’s specific statements, words spoken by that person
inside or outside the courtroom, lack probative value. See id.
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Batangan addressed the admissibility of expert opinion
testimony regarding the credibility of witnesses under HRE Rule
702. Per HRE 702, expert opinion testimony is admissible “[i]f
scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue” and when the witness is “qualified as
an expert by knowledge, skill, experience, training, or
education.” HRE Rule 702.
Defendant Batangan was accused of sexually abusing his
daughter when she was six or seven years old. Batangan, 71 Haw.
at 554, 799 P.2d at 50. At trial, the State presented the
testimony of “an expert witness in the field of clinical
psychology with a subspecialty in the treatment of sexually
abused children.” Id. at 554-55, 799 P.2d at 50. The expert
opined on the child’s credibility based on his evaluation of the
child, and the “behavior of child sex abuse victims in general.”
Id. at 555, 799 P.2d at 50. He “testified as to how he
evaluates whether a child is telling the truth about being
sexually abused” and “then implicitly testified that [the]
[c]omplainant was believable and that she had been abused by
[Batangan].” Id.
This court vacated Batangan’s conviction and remanded for a
new trial. Id. at 562, 799 P.2d at 54. The trial court had
erred in admitting the expert’s testimony because “expert
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testimony on a witness’ credibility is inappropriate” and
unhelpful to the jury because such cases usually have only “the
victim’s accusation and the defendant’s denial,” such that
testimony about who to believe “is nothing more than advice to
jurors on how to decide the case.” Id. at 556-57, 559, 799 P.2d
at 51-52. Grounding its decision on the rules of evidence,
Batangan held that “[t]he pertinent consideration is whether the
expert testimony will assist the jury without unduly prejudicing
the defendant.” Id. at 558, 799 P.2d at 52.
The court explained that while expert testimony may explain
an alleged child victim’s behavior, conclusory opinions about
the truthfulness or believability of the alleged victim based on
that behavior is inadmissible:
[W]hile expert testimony explaining “seemingly bizarre”
behavior of child sexual abuse victims is helpful to the
jury and should be admitted, conclusory opinions that abuse
did occur and that the child victim’s report of abuse is
truthful and believable is of no assistance to the jury,
and therefore, should not be admitted.
Id. Batangan stressed that where “the expert’s opinion is the
same as directly opining on the truthfulness of the complaining
witness, . . . such testimony invades the province of the jury.”
Id. at 559, 799 P.2d at 52 (cleaned up).
That Batangan was a criminal sexual assault case does not
change how the rules of evidence operate in family court. We
recognize the broad scope of information considered in family
court proceedings. See In re Doe, 109 Hawaiʻi 399, 411, 126 P.3d
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1086, 1098 (2006) (“Where the best interests of a child is of
paramount importance, consideration of all relevant evidence
becomes a critical duty of the court in making a decision
regarding custody and visitation.”).
In re ASK held, though, that while the best interest
factors under HRS § 571-46(b) allow “other relevant evidence,”
the rules of evidence still “confine the family court.” 152
Hawaiʻi at 127, 522 P.3d at 274. We also held that “within this
typical [family court] trial framework, there are no statutory
presumptions, no ‘super-factors,’ and no evidence that deserves
automatic preferential treatment.” Id.
We hold that the family court did not err in excluding
Nurse Baumstark and Psychologist Riggs’ expert testimony as to
whether the children were credible. Per Batangan, HRE Rule 702
precludes this type of expert testimony. 71 Haw. at 559, 799
P.2d at 52. While “expert testimony explaining ‘seemingly
bizarre’ behavior of child sex abuse victims is helpful to the
[fact-finder] and should be admitted, conclusory opinions that
abuse did occur and that the child victim’s report of abuse is
truthful and believable is of no assistance to the [factfinder], and therefore, should not be admitted.” Id.
Mother’s counsel asked expert witness Nurse Baumstark,
“[D]o you have any reason not to believe this child when he told
you what his father did?” Because Mother’s counsel asked Nurse
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Baumstark directly whether she believed Jack, this testimony is
inadmissible per HRE Rule 702 and Batangan. See 71 Haw. at 559,
799 P.2d at 52. The court did not err in excluding Nurse
Baumstark’s testimony on Jack’s credibility. See id.
The family court also properly excluded the credibility
questions Mother posed to expert witness Psychologist Riggs.
Mother’s counsel asked Psychologist Riggs: “Is it your
experience that very, very young children would repeat the same
thing over and over again in their disclosures?” Riggs
responded, “Yes.” Standing alone, Psychologist Riggs’s
testimony that “very, very young children . . . repeat the same
thing over and over again in their disclosures,” appears to
explain the children’s “seemingly bizarre” behavior, and is
admissible. See id. Father also did not object to this
statement.
Mother then asked Psychologist Riggs, “Is that suspicious
to you or is that what you would consider to be a normal
response?” Father objected. We hold that the court properly
sustained his objection. Asking whether that behavior is a
“normal” or “suspicious” prompted Riggs to opine on whether the
children were believable. See id. Thus, we hold that the
family court properly excluded Psychologist Riggs’ testimony
regarding the children’s credibility. See id.
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Detective Satterfield and SW Armstrong were not classified
as expert witnesses, and thus served as fact witnesses. We hold
that Batangan also applies to credibility testimony by nonexpert witnesses.
In re Doe held that the family court erred in admitting a
teacher’s lay opinion evidence that the complaining witness
child “wasn’t lying” about sexual abuse by a juvenile defendant.
70 Haw. at 35, 40, 761 P.2d at 301, 304. The prosecution
elicited the teacher’s testimony to bolster the veracity of a
hearsay statement regarding what the child had said. Id. at 40,
761 P.2d at 304. The court held that the family court should
not have admitted the teacher’s lay opinion. Id.
In re Doe distinguished its facts from State v. Kim, 64
Haw. 598, 645 P.2d 1330 (1982), where defense counsel had cast
doubt on a thirteen-year-old complaining witness’ credibility
during cross-examination. It noted that State v. Castro, 69
Haw. 633, 756 P.2d 1033 (1988) held that “[if State v. Kim] is
perceived as precedent for the allowance generally of expert
testimony on credibility, the perception is erroneous.” In re
Doe, 70 Haw. at 40, 761 P.2d at 304. “And obviously,” the court
said, “Kim does not stand for the proposition that lay testimony
on credibility is generally allowed.” Id.
Thus, we hold that lay testimony regarding a child’s
credibility regarding sexual assault allegations is generally
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inadmissible. See id.; see also State v. Ryan, 112 Hawaiʻi 136,
140, 144 P.3d 584, 588 (App. 2006) (“[I]t is generally improper
for a witness to express an opinion on the truthfulness of a
complaining witness’s allegations.”). And to repeat, the
evidentiary rules apply with equal force in family court. In re
ASK, 152 Hawaiʻi at 127, 522 P.3d at 274.
Here, the family court did not err in precluding SW
Armstrong’s non-expert testimony regarding the children’s
credibility. Mother actually objected to SW Armstrong’s
testimony. Yet Mother now challenges the family court’s
exclusion of Armstrong’s testimony. After urging the court to
keep evidence out, Mother cannot argue the court should’ve
allowed the testimony. In any event, because Father’s counsel
asked Armstrong if she believed that the children were abused
based on her review of CJC forensic interviews, the family court
properly excluded the testimony. See Batangan, 71 Haw. at 559,
799 P.2d at 52.
Last, we hold that the court did not err in excluding fact
witness Detective Satterfield’s testimony. Mother’s counsel
asked Detective Satterfield, “So do you believe these children
were sexually abused?” Because Mother’s counsel asked Detective
Satterfield if he believed the children’s disclosures, we hold
that the family court properly sustained Father’s counsel’s
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objection to this testimony per Batangan. 71 Haw. at 559, 799
P.2d at 52.
Even if the court had erred in excluding these expert and
fact witness’ opinions regarding the children’s credibility, we
hold that exclusion of their testimony constitutes harmless
error. The credibility of the children is ultimately within the
province of the fact-finder. See In re Doe, 95 Hawaiʻi 183, 190,
20 P.3d 616, 623 (2001). The witness’ opinion on the
credibility of the children does not aid the fact-finder in
reaching their independent credibility determination –
especially a judge conducting a bench trial. Witnesses opining
on the credibility of in-court or out-of-court statements by
others invades the fact-finder’s role in our justice system.
Thus, we hold that the exclusion of this opinion testimony, even
if in error, was harmless.
2. The family court did not err in excluding fact witness
Dr. Goldberg’s testimony regarding her interview with
the children
Mother argues that the family court erred in sustaining
Father’s hearsay objections to Dr. Goldberg’s testimony
regarding statements by the children during play therapy. We
hold that the court did not err in excluding Dr. Goldberg’s
testimony. Even if it had, the error was harmless.
Mother called Dr. Goldberg as a fact witness. At trial,
Mother asked Dr. Goldberg to testify as to what she observed
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while providing therapy to the children. Father objected to any
observations regarding statements the children made as hearsay,
but did not object to “visual observations.”
Mother cited the HRE Rule 803(b)(24) hearsay exception.
She stated “[i]t’s well established that reliable trusted
sources are allowed to speak on behalf of the children that have
been abused.”
HRE Rule 803(b)(24) is a catch-all provision for available
declarants that allows statements with “equivalent
circumstantial guarantees of trustworthiness” if the court
determines that “(A) the statement is more probative on the
point for which it is offered than any other evidence which the
proponent can procure through reasonable efforts, and (B) the
general purposes of these rules and the interests of justice
will best be served by admission of the statement into
evidence.” HRE Rule 803(b)(24). A statement is only admissible
under this exception if the proponent makes the statement known
to the adverse party in advance of trial, provides the adverse
party “with a fair opportunity to prepare to meet it,” and gives
advance notice of “the proponent’s intention to offer the
statement and the particulars of it[.]” Id.
Father argued that the pertinent evidentiary rule was HRE
804(b)(6). That rule applies to unavailable declarant children
under age sixteen who describe sexual contact or physical
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violence by another. HRE Rule 804(b)(6). The rule requires
“strong assurances of trustworthiness.” HRE Rule 804(b)(6).
Courts may examine, but are not limited to, factors such as the
age and mental condition of the declarant, spontaneity and
absence of suggestion, appropriateness of the language and
terminology of the statement given the child’s age, and lack of
motive to fabricate. Id.
The court sustained Father’s objection that because Mother
listed Dr. Goldberg as a fact witness, Father lacked sufficient
notice that Dr. Goldberg would be called as an expert witness.
The court allowed Mother to question Dr. Goldberg as a fact
witness - “based on her personal knowledge and not as an
expert.”
The appellate court applies the “right/wrong” standard of
review to questions pertaining to hearsay and hearsay
exceptions. Ortiz, 91 Hawaiʻi at 189-90, 981 P.2d at 1135-36.
The court properly excluded Dr. Goldberg’s testimony.
We note that the family court’s cited rule, HRE 803(a)(1), did
not apply to the evidentiary scenario at hand. The proffered
testimony involved a party’s child, not a party-opponent. Even
so, we hold that because Mother failed to provide adequate pretrial notice and did not lay a foundation for “equivalent
circumstantial guarantees of trustworthiness” under HRE Rule
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803(b)(24), the court properly excluded the testimony regarding
the children’s declarations.
It is undisputed that Dr. Goldberg’s testimony involves
hearsay: out-of-court statements (the children’s disclosures)
offered to prove the truth of the matter asserted (sex abuse).
See HRE Rule 802. Because Mother did not lay the proper
foundation for any hearsay exception, we hold that the court
properly excluded Dr. Goldberg’s testimony regarding the
children’s disclosures.
First, Mother failed to meet the procedural requirements of
HRE Rule 803(b)(24). See State v. Anger, 105 Hawaiʻi 423, 432
n.12, 98 P.3d 630, 639 n.12 (2004). Per HRE Rule 803(b)(24), a
party proffering a hearsay statement must “provide [the defense]
notice of its intention to employ the hearsay statement,
including the name and address of the declarant.” Id. If the
party provides sufficient pre-trial or pre-hearing notice, the
evidence “having equivalent circumstantial guarantees of
trustworthiness” may be admitted if “the court determines that
(A) the statement is more probative on the point for which it is
offered than any other evidence which the proponent can procure
through reasonable efforts, and (B) the general purposes of
these rules and the interests of justice will best be served by
admission of the statement into evidence.” HRE Rule 803(b)(24).
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While the purpose of the rule is to allow “a measure of
controlled flexibility in the judicial determination of what
evidence should be admissible under [HRE Rule 803] hearsay
exceptions[] . . . [t]he exception is not designed to open the
door widely for otherwise inadmissible evidence[.]” HRE Rule
803 cmt. Thus, “the requirement for prior notification to the
adverse party provides a protection against both excessive
liberalization [of this rule] and unfair surprise.” Id.
In Anger, the prosecution failed to meet the HRE Rule
803(b)(24) prior notification requirement. 105 Hawaiʻi at 432
n.12, 98 P.3d at 639 n.12. The prosecution called a police
officer to testify about a physician’s statement to the officer.
Id. But because the prosecution failed to notify the defendant
that the officer would testify about the physician’s statement,
the court held, the notice requirement was not met. Id. The
hearsay was inadmissible. Id.
Here, Mother was required to provide Father with notice of
the statement regarding the children’s disclosures in advance of
trial, and to provide Father “with a fair opportunity to prepare
to meet it.” HRE Rule 803(b)(24). Mother didn’t. She listed
“Margaret Goldberg” as a fact witness, but did not list Dr.
Goldberg’s credentials or the scope of her testimony. Thus, we
hold that the family court did not err in sustaining Father’s
objection to Dr. Goldberg’s hearsay testimony.
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We also hold that even if Mother had complied with the
notice requirement, she failed to satisfy HRE 803(b)(24)’s other
conditions. The hearsay did not have “equivalent circumstantial
guarantees of trustworthiness.” See HRE Rule 803(b)(24). The
children’s statements made to Dr. Goldberg were not “more
probative on the point for which [they were] offered” than any
other evidence Mother procured, and the “interests of justice”
would not be served by admission of the statements into
evidence. Id.
First, Mother’s counsel conflated Dr. Goldberg’s
trustworthiness with the “guarantees of trustworthiness” of the
declarant’s statements. When given the chance to lay a
foundation, Mother’s counsel only stated that Dr. Goldberg is a
“professional,” and a “trusted reliable source.” Mother’s
counsel did not tell the court why the declarant children’s
statements themselves possessed “equivalent circumstantial
guarantees of trustworthiness.” See HRE Rule 803(b)(24); State
v. Austin, 143 Hawaiʻi 18, 35, 422 P.3d 18, 35 (2018) (no
“circumstantial guarantees of trustworthiness” when the witness
was unable to provide enough detail to the sketch artist, the
witness’ own sketch was devoid of any detail, and the sketch was
the product of a “feeling” that compelled the witness to draw
the sketch).
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The children were ages three and five when they made their
statements. Nurse Baumstark and CE Shiner reported that the
children were too young to be interviewed. Dr. Goldberg told
Detective Satterfield that their speech was “hard to
understand.” By the time the children made disclosures to Dr.
Goldberg, they had already undergone multiple interviews and
meetings with professionals regarding alleged sexual assault by
Father: the June 29, 2021 CJC interview, an emergency room visit
where Mother requested sexual assault examinations, examinations
by Nurse Baumstark involving physical and verbal interviews, and
a court custody evaluator visit with the children. Mother had
also filmed herself only two months before the disclosures
“leading” the children to allege abuse by Father. The children
also continuously lived with Mother and Maternal Grandmother
after Maternal Grandmother contacted CWS in April 2021, and
Mother reported alleged abuse to MPD in June 2021. Thus, the
circumstances reveal influence and suggestibility by Mother, and
therefore, the declarations lack guarantees of trustworthiness
justifying admission. See HRE Rule 803(b)(24).
Second, the children’s statements were not “more probative
on the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts.”
See HRE Rule 803(b)(24). Mother’s counsel alleged that Dr.
Goldberg’s testimony would provide “more details of sex abuse
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than from disclosures to other professionals.” Mother’s counsel
did not establish why the proffered evidence would be “more
probative” as to whether Father assaulted the children than the
considerable evidence already received. The record includes
substantial evidence regarding the children’s disclosures that
Father touched their private parts. The hazy proffer of “more
details of sex abuse” was offered to boost the veracity of the
children’s alleged statements. Because of the children’s young
ages, and because significant evidence already suggested Mother
coached the children, though, we conclude that this evidence
would not be more probative than existing evidence. Thus, we
conclude that the evidence offered slim probative value compared
to the ample evidence already procured by Mother. See HRE Rule
803(b)(24).
Last, the hearsay was cumulative. Admitting testimony
about the children’s disclosures would not serve the “interests
of justice” because the parties already stipulated to pages of
evidence concerning the children’s disclosures. The disclosures
alleged by Mother (and at times witnessed by reporters) are
documented in admitted reports by the sexual assault nurse
examiner, CWS social workers, court-appointed supervised visit
monitor, court-appointed custody evaluator, and Maui Police
Department reports. The CJC interviews where the children made
disclosures were admitted as evidence and reviewed by the court.
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The parties also stipulated to admission of documents that
included Detective Satterfield’s interview with Dr. Goldberg
where she discussed the disclosures. Because the record is
stuffed with descriptions of the children’s disclosures, we hold
that the interests of justice did not require admission of Dr.
Goldberg’s testimony. See HRE Rule 803(b)(24).
In sum, we conclude that because Mother failed to meet the
notice requirement, the court did not err in excluding Dr.
Goldberg’s testimony. We also conclude that even if Mother had
followed the evidence rule, the children’s statements did not
demonstrate “equivalent circumstantial guarantees of
trustworthiness,” and HRE Rule 803(b)(24)’s other conditions.
The court also did not err in sustaining Father’s objection
under HRE Rule 804(b)(6). Mother did not try to lay a
foundation under HRE Rule 804(b)(6) even though she said she
would. Mother argues in her cert application that she also
cited HRE Rule 804(b)(6). In fact, Father raised HRE Rule
804(b)(6) during the exchange with the court. Mother’s counsel
responded to Father’s statement that “[s]he hasn’t provided a
foundation for any of those things [under HRE Rule 804(b)(6)]”
with, “I’m happy to do that, your Honor, if the Court will allow
me time.” However, when granted the opportunity to establish a
foundation, Mother’s counsel mentioned Goldberg’s
trustworthiness. Counsel stated that “as a professional, we
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would say that [Dr. Goldberg] is a trusted reliable source and
should be able to repeat what the children said.” This thin
foundation hardly references the multiple requirements and
factors under HRE Rule 804(b)(6)’s preconditions for
admissibility.
The legislature added the HRE Rule 804(b)(6) hearsay
exception for child declarants in 1993. See 1993 Haw. Sess.
Laws Act 198, § 1, at 304. “Explicit in [HRE 804(b)(6)] . . .
is the threshold requirement of showing a declarant’s
unavailability[.]” State v. Apilando, 79 Hawaiʻi 128, 141, 900
P.2d 135, 148 (1995). “[It] also provides that a child’s
statement is admissible only ‘if the court determines that the
time, content, and circumstances of the statement provide strong
assurances of trustworthiness.’” Id. (quoting HRE 804(b)(6)).
The rule’s supplemental commentary explains that the Hawaiʻi
Supreme Court’s Final Report of the Committee on Hawaiʻi Rules of
Evidence emphasized the importance of a showing of
unavailability, followed by “strong assurances of
trustworthiness.”
What is needed is a hearsay exception that will provide
sufficient safeguards to allow for receipt of reliable
hearsay statements in cases where child declarants become
“unavailable” through inability to remember or to
communicate. . . . The committee has carefully constructed
proposed Rule 804(b)(6) with Justice O’Connor’s Idaho v.
Wright [497 U.S. 805 (1990)] analysis in mind. We have
specified the relevant circumstances . . . and have
articulated the bottom-line reliability criterion: “[T]hat
the time, content, and circumstances of the statement
provide strong assurances of trustworthiness.”
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HRE Rule 804 supp. cmt. (quoting Hawaiʻi Supreme Court, Final
Report of the Committee on Hawaiʻi Rules of Evidence 37-38
(1991)).
Here, Mother did not establish Jack’s unavailability with
regard to Dr. Goldberg’s testimony. See HRE Rule 804(b)(6). We
acknowledge that unavailability does not have the same
constitutional connotations in a family court proceeding as it
does during a criminal trial. See Apilando, 79 Hawaiʻi at 141,
900 P.2d at 148 (allowing hearsay testimony when a declarant is
available violates a defendant’s right to confrontation).
Because Jack was around age six and Grace was around age four at
the time of trial, they were likely unavailable. See HRE Rule
601.
Still, because Mother made no attempt to establish any of
the other HRE 804(b)(6) requirements, we hold that Mother did
not satisfy HRE Rule 804(b)(6). Mother did not lay a foundation
for why the children’s age and mental condition, the
appropriateness of the terminology used, or the time between the
alleged assault and the declarations, for example, produced
“strong assurances of trustworthiness.” See HRE Rule 804(b)(6).
In her interview with Detective Satterfield, Dr. Goldberg
confirmed the disclosures, noting that for both children, “[w]e
were building [with toys] and [the disclosure] kind of came out
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of nowhere.” Jack stated that Father put his finger in his
butt, and Grace said that Father put his finger in her butt and
vagina. Dr. Goldberg said she asked Jack if it hurt (he said
“yes”), and whether it was a long time ago (he said “no”), then
“left it.” She only asked Grace if it hurt (yes), and again
“left it.” During the police interview, Dr. Goldberg did not
describe anything else about the disclosures, such as
information about when or where the alleged abuse occurred.
Mother brought the children to Dr. Goldberg at her
attorney’s recommendation. Dr. Goldberg also told Detective
Satterfield that she asked Mother if she had told the children
what to tell her during therapy. Dr. Goldberg reported she “was
kind of worried about that.” Mother told Dr. Goldberg that she
only told the children “they could tell [Dr. Golberg] anything,”
but that she didn’t tell them what to say.
Under the circumstances, the statements by children do not
have HRE Rule 804(b)(6)’s “strong assurances of
trustworthiness.” The record suggests that Mother induced the
children to make disclosures. Since Mother made the children
participate in videos that informed others about instances of
sexual assault, and Mother and her parents questioned the
children about sexual abuse throughout the hotly-contested
proceedings, there may be suggestibility. See HRE Rule
804(b)(6). As a result, the young children may have felt
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pressure to describe sexual assault. See id. That Dr. Goldberg
felt she had to ask whether Mother coached the children also
decreases the trustworthiness of these statements.
Even if the statements were made seemingly spontaneously to
Dr. Goldberg during play therapy (which Mother did not expressly
assert at trial), Mother did not argue that the children’s young
ages or developmental capacity supported the reliability of
those statements, or that Jack fully understood temporal
concepts like recency to answer Dr. Goldberg’s questions
accurately.
Further, the consistent questioning of the children
throughout these proceedings erodes the trustworthiness of these
late-in-the-game “spontaneous” disclosures. To repeat, by the
time the children made disclosures to Dr. Goldberg, they had
already undergone multiple interviews and visits with
professionals. These included a CJC interview, an emergency
room visit where Mother requested sexual assault examinations,
examinations by Nurse Baumstark involving physical examination
of the children’s privates, and a court custody evaluator visit
with the children. The clear emphasis on the children “sharing”
specific types of information with professionals again decreases
the trustworthiness of the children’s statements made to Dr.
Goldberg. See HRE Rule 804(b)(6).
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Thus, under the entire circumstances and the evidence
presented to the court at trial, we conclude that the family
court properly determined that the hearsay statements do not
have “strong assurances of trustworthiness.” See HRE Rule
804(b)(6) (emphasis added).
We hold that the court did not err in excluding Dr.
Goldberg’s testimony regarding the disclosures per HRE Rule
804(b)(6).
Last, we hold that even if the family court had erred, the
omission of Dr. Goldberg’s testimony constituted harmless error.
In re Doe held that “[t]he exclusion of testimony is harmless
where the same evidence is established through other means.”
100 Hawaiʻi at 346 n.23, 60 P.3d at 296 n.23. Dr. Goldberg’s
interview with Detective Satterfield regarding the children’s
disclosures to her was admitted into evidence as part of Exhibit
2. The parties stipulated to admission of that exhibit. And as
mentioned, there was substantial evidence already before the
court regarding the children’s disclosures. Thus, we hold that
omission of Dr. Goldberg’s testimony regarding the children’s
disclosures constitutes harmless error. See id.
B. The family court did not abuse its discretion in awarding
sole legal and physical custody to Father and allowing
Father to return to Utah with the children
We hold that the family court did not abuse its
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discretion by concluding that the children’s placement with
Father in Utah served the best interest of the children.
The family court possesses wide discretion, and its
decisions are evaluated under the “abuse of discretion”
standard. DJ v. CJ, 147 Hawaiʻi 2, 17 n.16, 464 P.3d 790, 805
n.16 (2020) (Despite the “great deference” granted to family
courts in making custody decisions and in determining the bests
interests of the child, “[t]he applicable standard of review is
still ‘abuse of discretion.’”).
Family courts are tasked with making tough decisions
regarding evidence, credibility, and the best interest of the
child. Judges make these calls after eyeballing and listening
to witnesses. Credibility determinations are for the trial
court, not appellate courts reading transcripts away from the
live give-and-take action of the courtroom. See In re Doe, 95
Hawaiʻi at 190, 20 P.3d at 623. Fact-intensive, on-the-ground
decisions are not generally second guessed on appeal.
“It is well established that a family court abuses its
discretion where ‘(1) the family court disregarded rules or
principles of law or practice to the substantial detriment of a
party litigant; (2) the family court failed to exercise its
equitable discretion; or (3) the family court’s decision clearly
exceeds the bounds of reason.’” Kakinami v. Kakinami, 127
Hawaiʻi 126, 155-56, 276 P.3d 695, 724-25 (2012) (Acoba, J.,
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concurring and dissenting). Further, “[i]t is well-settled that
an appellate court will not pass upon issues dependent upon the
credibility of witnesses and the weight of the evidence; this is
the province of the trier of fact.” In re Doe, 95 Hawaiʻi at
190, 20 P.3d at 623.
A family court’s findings of fact are reviewed under the
“clearly erroneous” standard. Fisher, 111 Hawaiʻi at 46, 137
P.3d at 360. “A FOF is clearly erroneous when (1) the record
lacks substantial evidence to support the finding, or (2)
despite substantial evidence in support of the finding, the
appellate court is nonetheless left with a definite and firm
conviction that a mistake has been made. ‘Substantial evidence’
is credible evidence which is of sufficient quality and
probative value to enable a person of reasonable caution to
support a conclusion.” Id.
“Hawaiʻi courts have consistently adhered to the best
interests of the child standard as paramount when considering
the issue of custody.” Id. at 50, 137 P.3d at 364. HRS § 571-46(b) provides sixteen factors the court must consider in
determining the best interests of a child. HRS § 571-46(b).
Factors relevant to this case include: (1) Any history of sexual
or physical abuse of a child by a parent (HRS § 571-46(b)(1));
(2) The overall quality of the parent-child relationship (HRS
§ 571-46(b)(3)); (3) The history of caregiving or parenting by
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each parent prior and subsequent to a marital or other type of
separation (HRS § 571-46(b)(4)); (4) The physical health needs
of the child (HRS § 571-46(b)(6)); (5) Each parent’s actions
demonstrating that they allow the child to maintain family
connections through family events and activities (HRS § 571-46(b)(11)); (6) Each parent’s actions demonstrating that they
separate the child’s needs from the parent’s needs (HRS § 571-46(b)(12)); and (7) Any evidence of past or current drug or
alcohol abuse by a parent (HRS § 571-46(b)(13)).
In assessing these factors, “the family court is granted
broad discretion to weigh the various factors involved, with no
single factor being given presumptive paramount weight, in
determining whether the standard has been met.” Fisher, 111
Hawaiʻi at 50, 137 P.3d at 364. The court is also not limited to
the factors enumerated in HRS § 571-46(b). HRS § 571-46(b)
(“the court shall consider, but not be limited to, the following
[HRS § 571-46(b) factors]”).
In its conclusions of law, the family court listed all
sixteen of the HRS § 571-46(b) best interest of the child
factors. The court did not expressly cite these factors in its
FOFs, or describe in detail which HRS § 571-46(b) factors
supported each FOF. But our review of the record shows that the
court sufficiently assessed the statutory factors.
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Because we review the family court’s custody order for
abuse of discretion, as long as we can track its decisionmaking, we do not require a family court to take a hypertechnical or artificial approach and match each FOF and COL with
a HRS § 571-46(b) factor. As Fisher held, “the family court is
given much leeway in its examination of the reports concerning a
child’s care, custody, and welfare, and its conclusions in this
regard, if supported by the record and not clearly erroneous,
must stand on appeal.” 111 Hawaiʻi at 46, 137 P.3d at 360.
We hold that the FOFs and COLs clearly support a proper
evaluation of HRS § 571-46(b)’s factors. Thus, the family court
did not abuse its discretion in awarding Father sole custody and
allowing him to move with the children back to Utah.
The family court concluded:
21. Father is a fit and proper parent who can
provide a stable, safe and wholesome home for the minor
children in Utah.
22. Mother is not present[ly] a fit or proper parent
who can provide a stable, safe and wholesome home for the
minor children.
23. Father’s relocation plan is realistic, credible
and sustainable.
24. Mother’s conduct demonstrates she is unable to
act in the best interest of the minor children and that
unsupervised visitation of the children would presently be
detrimental to their best interest.
25. Mother’s actions demonstrate that either she is
unable to separate her needs from the minor children or she
is unable to protect the children from her parents’ needs
and wants.
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Consequently, the court granted Father sole custody and
allowed him to relocate with the children:
(1) that Father have sole legal and physical custody
of the minor children,
(2) that Father and minor children be permitted to
relocate and return to the State of Utah, provided that he
shall notify the Court and Mother within thirty days of
this order if Father and the minor children will not be
relocating and returning to the State of Utah,
(3) that Mother have reasonable supervised
visitation with the children – in person or through
telephone, computer videotelephony or other reasonable
means – as agreed upon by the parties, or as further
ordered by the Court.
(6) That the Amended Order for Protection filed
December 8, 2021 in [Mother] obo Minor Child v. [Father],
FC-DA No. 21-1-0510 be dissolved, and
(7) That each party shall be responsible for his or
her own costs and attorney’s fees.
We hold that the family court properly ruled. The court’s
extensive findings support its conclusion that Father’s custody
and relocation serves the best interest of Jack and Grace.
Thus, the court did not abuse its discretion.
1. The record supports the family court’s findings that
there was no confirmed sexual abuse by Father
The record supports the family court’s finding that Father
did not sexually abuse his children. The family court’s
findings thus support that per HRS § 571-46(b)(1) (“[a]ny
history of sexual or physical abuse of a child by a parent”),
Mother’s sexual abuse accusations against Father do not weigh
against Father’s custody of the children.
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Father has always denied any sexual touching or abuse of
his children - to social workers, the police, anyone who asked.
He also testified at trial that he has never sexually assaulted
his children. While not saying so explicitly, the family
court’s disposition implicitly found Father credible.
Mother informed CWS that she initially did not believe that
Father had abused the children. After Maternal Grandmother
filed a report with CWS, Mother acknowledged that she told SW
Armstrong that she “felt her mom had ‘jumped the gun’ and she
had no concerns regarding [Father’s] care of them. Mother was
offered CJC interviews for [the children] as well as services
but she declined.”
Mother first began alleging sexual abuse after the court
did not rule in her favor. On June 3, 2021, the family court
declined to award Mother sole legal and physical custody. Ten
days later, on June 13, 2021, Mother called the Maui Police
Department and claimed that the children were “sexually
assaulted by their father” two months before, in April 2021.
Mother’s interview with Maui police was odd. The officer
reported that Mother changed her statements over the course of
the interview, laughed inappropriately, and failed to make eye
contact.
Two hours later, after the police had alerted him to the
accusation, Father waived his constitutional rights and was
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questioned by the police. He denied sexually touching his
children.
The children initially made no disclosures. On June 29,
2021, the Children’s Justice Center interviewed the children,
but neither child disclosed instances of sexual abuse.
The family court remarked in FOF 90 that it had reviewed
the video recordings of both CJC interviews. The court placed
on the record that there were no disclosures in those interviews
pertaining to inappropriate sexual touching by Father.
According to SW Reinecke’s report, Grace’s “speech [during the
interview] was mostly ineligible[,] [sic] making her statements
difficult to understand.”
She talked about taking baths, sleeping with her
daddy and playing; not in any specified order. Of
pertinence was Grace’s statement “daddy help when go
poop . . . wipe butt; my butt hurt”. She is wiped with
“paper”. Asked who does she sleep with she responded
“daddy”. Who live with? She responded “daddy”. Asked who
she showers with, she responded “daddy and Jack.”
The family court had also ordered the Department of Human
Services to investigate the allegations. CWS’ July 2021 report
to the court found neither sexual abuse nor a threat of sexual
abuse by Father.
As the proceedings progressed, Mother appeared to prompt
the children to make disclosures. The CWS report stated that
Mother claimed she had “various audio and video recording of
kids making statements about what their dad did sexually to
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them. [Mother] stated because of the kids’ ages, information
comes out in bits. It was difficult for her to get it out of
Jack but Grace told her ‘daddy touched my butt’ and Grace showed
her finger inserting anus and vagina. That both kids were
crying saying their butts hurt.” Per CWS, two videos given to
CWS by Mother were “difficult to understand.” And they were
“highly suggestible and leading.” SW Reinecke stated she
“observed Jack saying ‘they trust teenagers’” and “[Mother]
saying to child ‘cops don’t believe kids, they only believe[]
adults.’”
CWS did not confirm actual abuse or the threat of abuse by
Father. CWS reported that there was “too much ambiguity” as to
whether the children were abused, partly because “[t]he children
have also been exposed to Mother’s boyfriends, of whom no
information is given with exception that there ha[s] been
exposure to domestic violence.” As for other potential causes,
CWS stated that Maternal Grandmother acknowledged that the
children had pinworms, but that they were only treated with
over-the-counter medication. CWS recommended the children
undergo medical physicals, and have the “pinworm issue[]
verified and treated.” CWS social worker Reinecke later
testified during trial that she thought the pinworms “would
impact [the children] digging their butts,” so she recommended
medical attention to rule out natural health issues.
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Last, while a subsequent October 29, 2021 report did
confirm the threat of sexual abuse by Father, CWS clarified that
threat of sex abuse only means “a possibility of that harm
happening.” “[A]ctual abuse is that it actually occurred, that
we have evidence to confirm actual sex abuse.” When asked
whether the term “threat” was a synonym for a “possibility” of
sex abuse, Armstrong explained, “there is the threat that
[Father] may have or may in the future abuse his children in a
sexual manner, so that’s the threat. But we have no proof that
he actually did anything so I can’t confirm sex abuse.”
(Emphasis added.)
We hold that the record supports the court’s conclusion
that there was no evidence of abuse by Father. We also hold
that while the court did not expressly reference HRS § 571-46(b)(1) as applied to these facts, it is clear that the court
considered this factor at length – nearly forty findings of
fact. Thus, the court did not err.
2. The court did not err in concluding that Mother is
unable to separate her children’s needs from both
Mother’s and Mother’s parents’ needs
The record reveals that the court did not abuse its
discretion in concluding that “Mother’s actions demonstrate that
either she is unable to separate her needs from the minor
children or she is unable to protect the children from her
parents’ needs and wants.” The family court’s conclusion that
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Mother is unable to separate her needs (and her own parents’
needs) from her children’s needs shows that the court considered
HRS § 571-46(b)(12) – “[e]ach parent’s actions demonstrating
that they separate the child’s needs from the parent’s needs.”
HRS § 571-46(b)(12). This conclusion is supported by the
court’s findings and the record, and thus, the family court did
not abuse its discretion.
The court found that “[t]here is substantial, credible
evidence that Mother has coached the minor children to make
statements regarding inappropriate touching by Father which when
reported to third parties would lead a reasonable person to
believe that Father had sexually abused the children even where
he had not.” It also found that CWS reported that Mother’s
recordings of her questioning the children was “highly
suggestive and leading.” The court concluded that “Mother’s
actions demonstrate that either she is unable to separate her
needs from the minor children or she is unable to protect the
children from her parents’ needs and wants.”
The evidence shows that the videos Mother filmed were
leading or created only to boost Mother’s allegations. The
dubious nature of Mother’s recordings caused law enforcement,
the custody evaluator, and social workers to express concern.
CWS social worker Reinecke testified that the questions Mother
posed to children in the videos Mother submitted to CWS were
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“leading” and “not neutral.” In August 2021, Detective
Satterfield reported that Mother sent him seven videos of Mother
interviewing the children. The detective warned Mother to stop
taking videos and interviewing the children on her own. She was
directed not to send more videos. Custody evaluator Shiner also
reported that SW Reinecke told her that she “wonder[s] about
[Mother’s] mental health. In the videos and audios that she
submitted, she’s extremely leading.”
Father had concerns of his own. SW Armstrong stated in her
report that “[Father] is concerned that someone might be
touching his kids and reporting that it is him” and that “the
children may be being coached.”
Evidence also suggests that because the children’s
disclosures to Dr. Goldberg “came out of nowhere,” the children
were told to make those statements during therapy. Dr. Goldberg
told Detective Satterfield that for both children, “[w]e were
building and it kind of came out of nowhere.”
Further, the court found that “Dr. Goldberg expressed
concern, during cross-examination, that Mother had attempted to
direct Dr. Goldberg to do things that Dr. Goldberg did not agree
to do and that Mother had a tendency to say inappropriate things
at times.” Dr. Goldberg had reported to Detective Satterfield
that Mother “seems to sometimes think that she knows what people
should do, like me and tell me what to do and I don’t like
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that.” She also reported that Mother “just seems to say the
wrong thing at certain times and um and I don’t know. I can’t
quite put my finger on it.” On cross-examination, Dr. Goldberg
confirmed her statements. Dr. Goldberg’s allusion to Mother
telling a professional what conclusions to reach, or what action
to take, supports the court’s conclusion that Mother coached the
minor children to make certain statements to Dr. Goldberg.
The record also supports that the children may have been
coached to disclose specific statements to their supervised
visit monitor, Ms. Przeciechowska. During a supervised visit in
November 2021, “[t]he monitor asked [the children] if they were
comfortable during the visit. Both children said ‘yes,’ and
Grace commented: ‘Dada touched my butt.’ The monitor asked the
child if this happened today during the visit, and the child
said, ‘at the farm.’” On December 18, 2021, “[w]hile the
monitor and the children were waiting for the father’s arrival,
Grace said her ‘Dada’ touched her butt yesterday. Jack, who
overheard his sister’s statement, commented, ‘No, at the farm.’”
Last, on December 22, 2021, “[w]hile the father was reading a
book aloud to Jack [during a supervised visit], Grace approached
the monitor and said: ‘[Ms. Przeciechowska], my dada touched my
butt,’ the monitor didn’t make a comment, and Grace repeated,
‘My dada touched my butt.’ The monitor looked at the child and
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said, ‘Grace, I appreciate that you want to share this with me,’
and Grace commented: ‘My mom told me.’” (Emphasis added.)
Last, Nurse Baumstark testified that before her examination
of the children, when she gathered information from Mother,
Mother remained about five or ten feet away from where the
children were playing with another staff member in the
examination room. The nurse conceded that pre-examination
information she obtained from Mother about the purported
disclosures may have been overheard by the children. Later,
during the examination, Jack reported, “dad put his finger in my
butt.” This statement was not made in response to any question
posed by Baumstark. Again, while not conclusive, this evidence
supports FOF 100 finding that Mother “coached the minor children
to make statements regarding inappropriate touching by Father
which when reported to third parties would lead a reasonable
person to believe that Father had sexually abused the children
even where he had not.”
The family court therefore did not abuse its discretion in
finding “substantial, credible evidence” that Mother coached the
children to make statements suggesting inappropriate touching by
Father.
The record also supports the court’s finding that “Mother’s
parents appear to exert a level of unreasonable influence and
undue control over Mother including her parental decision-making
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regarding the minor children and her child-rearing actions.” CE
Shiner reported that Mother characterized Maternal Grandmother’s
independent April 2021 report to CWS as “going overboard,” and
that “[Father] told [Mother] he wanted to take [the] kids back
to Utah but Maternal Grandma blocked it.” SW Reinecke also
reported that regarding Maternal Grandmother’s April 2021 report
to CWS, “[Mother] acknowledged she met with DHS SW Leslie
Armstrong and did share she felt her mom had ‘jumped the gun’
[in telling Father he ‘could not come around’ and calling CPS on
Father] and she had no concerns regarding [Father’s] care of
them.” Many of the reports of alleged inappropriate behavior by
the children have also been reported to Mother by Maternal
Grandmother.
The family court also found that “Mother’s parents have
consistently taken the position and have taken action in
furtherance of obtaining custody of the minor children [sic]
Mother and Father should give custody of the children.” Mother
reported to SW Reinecke that in March 2021, “[t]here was a
‘small’ confrontation between Maternal Grandma and [Father,]
with Maternal Grandma telling Father he could not come around.
[Mother] shared she thought maybe her mom was being
‘vindictive’ . . . . Maternal Grandma then called CPS on
[Father.]” Mother disputed Maternal Grandmother’s abuse claims
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at the time, and felt that Maternal Grandmother had “jumped the
gun,” and that she “was going overboard.”
During the custody proceedings, Maternal Grandmother
suggested to CE Shiner that the children should remain in the
Maternal Grandparents’ home. “The kids have lived in our house,
with [Mother], their entire life,” she told CE Shiner. “How
could [Father] be the one who gets primary custody?” Even
though eventually “[Mother] would have her own house,” Maternal
Grandmother said, “[t]hey’ve all been living with me and my
husband most of the time [Mother and Father] were together.”
SW Armstrong reported that “Father believes [the sexual
abuse] allegations were started so that he would not get custody
of the children as the maternal grandparents want the children.”
CE Shiner reported that “[Father] is very concerned that Mother
has been making false allegations about him molesting the
children, and he thinks it may partly be due to [Maternal
Grandmother] wanting to have custody of the children, something
she has proposed multiple times since the children were born.”
Paternal Grandmother reported to CE Shiner that “[Maternal
Grandmother] misled [Father], she went to great lengths to
deceive him and his family about this [living] arrangement and
has asked on occasion for [Father] to sign his rights away so
[Maternal Grandmother] can raise [the children]. . . .
[Paternal Grandmother does not] think [Mother] or her parents
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will ever support [Father] having a healthy relationship with
his children.” Father also testified that he told Mother that
he wanted to take the children back to Utah partly because he
could then “see them every day and [he] can be their father
rather than [Maternal Grandmother] having them all the time.”
Thus, the record supports that Mother is unable to protect
her children from the Maternal Grandmother’s desire to gain
custody of the children and her interference with the children’s
relationship with Father.
Based on the foregoing, we hold that the family court
correctly concluded that Mother is unable to separate her needs
(and her own parents’ needs) from her children’s needs under HRS
§ 571-46(b)(12).
3. The record supports that Father is more secure in his
sobriety than Mother
We conclude that the family court did not err in finding
that while both parties have a history of drug use, Father has
greater insight into addiction and is more stable and secure in
his sobriety than Mother. See HRS § 571-46(b)(13) (“[a]ny
evidence of past or current drug or alcohol abuse by a parent”).
First, the court found that Mother had misrepresented her
date of sobriety and had not definitively stated for the record
her sobriety start date. FOF 30 reads:
Mother has been a habitual drug user of opioids and
methamphetamine but has been drug free since at least
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August, 2021. Mother reported to the custody evaluator in
July, 2021, that she had been sober since April 10, 2020,
but then admitted she had relapsed with her boyfriend in
July, 2020. Her psychiatrist reported that she denied use
of methamphetamines after June 2020. Mother did not
definitely state her date of sobriety in the record.
FOF 30 is supported by the record.
The court also found that Mother was “uncomfortable” in
describing taking heroin and methamphetamine, which demonstrates
a developing “awareness” of her addiction and “the power of the
substances for which she has an addiction.” On the other hand,
the court found that Father was more candid, describing his
experience of using heroin and methamphetamine as “the best
feeling in the world.” “The Court [found] that both parents
have the likelihood of relapse. Based on the testimony and
evidence presented, Father has deeper and clearer insight into
his addiction, his present state as well as his history of drug
use.” Father told CE Shiner that he was “secure” in his
sobriety, and Paternal Grandmother testified that Father has
always been “very honest with [her] about even his fails as far
as drug use or substance abuse issues.” Further, “Father’s
housemate testified that he had not seen Father consume alcohol
since March, 2021 and had not seen him ingest any drugs.
Father’s employer also indicated that she would not tolerate any
drug use by Father.”
Thus, the court properly determined that Father has greater
insight into his addiction and sobriety and Mother, and that HRS
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§ 571-46(b)(13) weighed in favor of the court granting Father
custody.
4. The record supports the family court’s finding that
Father has a positive, loving relationship with the
children
Sufficient evidence supports that Father has a positive,
loving relationship with his children. Thus, the court did not
err in concluding that Father’s positive relationship with his
children under HRS § 571-46(b)(3) (“[t]he overall quality of the
parent-child relationship”) and HRS § 571-46(b)(7) (“emotional
needs of the child”) weighed in favor of Father’s sole custody
and relocation.
First, the family court found that “Father had several
supervised visits monitored by [a visit supervisor]. The
[s]upervisor reported that the visits demonstrated Father and
the children had normal and pleasant interactions and that the
minor children appeared to be comfortable around Father.” It
also found that “Father’s housemate and immediate supervisor
testified that Father was bonded with the minor children and
that the interactions were happy and normal.”
These findings are supported by the record. CE Shiner also
reported that “Father’s interactions with the children appeared
to be caring and playful, with him tending to their needs and
being appropriately protective,” and that “Father appears to be
a caring, nurturing parent, and the children appear comfortable
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with him.” Father’s co-worker testified that it was
“inspiring . . . [to] see how [Father] connects with his
children and goes above and beyond for [them]. It’s very
spectacular.” Father and Paternal Grandmother also testified
that the children are close with Father and love Father.
We disagree with the dissent’s recasting of Mother’s
appellate argument - that the family court erred because it
granted Father custody based solely on Mother’s misuse of the
protection from abuse process - to suggest that the court
ignored the children’s emotional needs when awarding custody.
Mother’s history of having informal primary custody does not
mean that she is better equipped than Father to meet the
children’s emotional needs. As discussed, the record supports
that Father had a positive relationship with both children, and
thus, he could meet their emotional needs in Utah. Conversely,
the record supports the court’s findings and conclusions
regarding Mother’s inability to separate her own needs from her
children’s needs, Mother’s minimal insight into her sobriety,
her history of exposing the children to an abusive boyfriend,
and her interference with Father’s relationship with his
children. The record supports that the court carefully
considered the statutory factors and did not abuse its
discretion in granting Father sole custody.
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5. Evidence suggests Mother does not provide adequate
health care to support the physical health needs of
the children
Evidence also supports that Father is better equipped to
support the physical health needs of the children. Mother had
failed to obtain health insurance or regular health care for the
children. See HRS § 571-46(b)(6) (“The physical health needs of
the child.”).
The record reflects that Mother ascribes to therapeutic
remedies, and did not seek proper pediatric care for the
children. In Maui, Mother worked from home part-time at
Maternal Grandmother’s company “Weed Steam Hawaii” (a weed
control company) as an office assistant, and earned $600 per
month and room and board. She also received $610 in Temporary
Assistance for Needy Families and $1,000 in food stamps. Given
the financial support from her parents, it is unlikely she
lacked funds to acquire insurance or health care for the
children. No other reason appears on the record for Mother’s
failure to acquire health care for the children between December
2019 (their move to Maui) and July 2021 (CWS’ report
recommending the children be seen by a pediatrician).
It was reported that the children may have reported buttock
pain because they had untreated pinworms. The family court
found that “[t]he minor children suffered from pinworm
infections that Mother did not have treated by a health care
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professional.” SW Reinecke reported that “[the children] do not
have medical coverage and have not been to any physician for
exams. Reportedly Mother and Maternal Grandma ascribe[] to
naturopathic medicine. Maternal Grandma relayed Mother stated
the kids had pinworms and were treated with over the counter
medication. It is unknown whether the treatment was successful
and condition resolved.” CE Shiner reported that “[Father] is
concerned that Mother has not been taking the children to
regular doctor visits, as she is ‘antidoctor,’” and that
“Father’s mother, says that Mother’s mother ‘has paid a doctor
to forge their immunization records to be able to enroll them in
school and daycare.’”
Per HRS § 571-46(b)(6), the court shall consider “[t]he
physical health needs of the child[ren].” Evidence shows that
Mother did not provide for the physical health needs of the
children, and thus supports the family court’s broader
conclusion that “Mother is not present[ly] a fit or proper
parent who can provide a stable, safe and wholesome home for the
minor children.”
6. Mother’s actions interfered with Father’s interactions
with his children
The record suggests that because of Mother’s allegations of
child sexual abuse against Father and repeated interrogation of
her young children, Mother impacted Father’s visitation with the
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children and harmed Father’s relationship with his children.
See HRS § 571-46(b)(11) (each parent’s actions demonstrating
that they allow the child to maintain family connections through
family events and activities). The evidence showed that because
of Mother’s allegations, Father no longer wanted to visit the
children at Mother’s parents’ house. He also surreptitiously
audio recorded visits with his children because he feared more
false allegations.
The family court concluded that “[o]ne parent’s making of
unfounded allegations of child abuse against another parent
including by coaching a child to make false allegations of abuse
so as to cause the restriction or interference with the
visitation of the child by the other parent are acts so
inconsistent with the best interests of the child that it raises
a strong probability that the offending parent is unfit to act
as a custodial parent.”
As described above, evidence supports the family court’s
finding that Mother induced the children to make statements
suggesting sexual abuse by Father. Father testified that after
Mother fabricated the story about an alleged video of him
abusing the children in August 2020, he recorded his visits with
the children on his phone “to protect [himself] from these
allegations.” SW Armstrong also testified that Father shared
that he was recording his unsupervised visits.
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The family court also stated in FOF 101 that “[t]he court
is extremely concerned that the litigation of this proceeding,
the numerous evaluations, investigations and interviews to which
the children have been subjected, and the pressures brought to
bear on the children by Mother and her family have impaired the
minor children’s trust and confidence in the social institutions
designed to protect them from harm in addition to hav[ing]
alienated them from their Father.” (Emphasis added.)
Mother’s interference with the paternal relationship is
supported by the record. SW Reinecke reported that “[Father]
stated things just started getting worse and [Maternal
Grandmother] would come by and peek in the room with him and the
kids without knocking. He did not want to have visits at her
house anymore.”
Father testified that Jack seemed reluctant to visit with
him, because he believed “[the children] are being grilled and
asked questions by [M]other and therapist right after [Father’s]
visits accumulating to Jack not wanting to come and see [Father]
in the first place.” SW Reinecke also reported that the
children stopped letting Father assist them with toileting and
bathing:
Due to things their mom and grandparents say to [the
children], it makes it harder for [Father] to take care of
them. Usually, after Jack poops, Father has him stand up
so he (father) can better wipe him. Jack refused to stand
up now so he (father) has to wipe him while he is sitting
on potty. This has progressed to now, he has to leave
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bathroom when kids are using it. [Father] relayed he is
scared to help kids with bathing and personal hygiene. He
has not helped them bath[e] in 2-3 months.
Thus, the record supports the court’s reasoning that
Mother interfered with the children’s relationship with
Father. See HRS § 571-46(b)(11).
7. Father’s relocation plan was realistic, credible, and
sustainable
Last, we hold that the family court properly concluded that
Father is “a fit and proper parent who can provide a stable,
safe[,] and wholesome home for the minor children in Utah” and
that his relocation plan was “realistic, credible, and
sustainable.” The record supports that Father is an engaged
parent with significant family support, housing, and resources
to care for the children in Utah. The children were born in
Utah, and had only spent about a year in Hawaiʻi before Mother
sought sole custody. They are close with family members in
Utah.
Mother was born and raised in Colorado, Oregon, and Utah.
She does not have strong ties to Hawaiʻi other than her parents’
support in providing her housing at their rental home. While
the record is unclear as to why Mother’s parents moved from Utah
to Hawaiʻi, Mother still has family living in Utah that she could
live with if she chooses to move back to Utah and have
supervised visits.
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The record supports that Father has a positive relationship
with his children and has been involved in their upbringing.
Father was engaged in caregiving of the children before Mother
and Father’s separation. See HRS § 571-46(b)(4) (the history of
caregiving or parenting by each parent prior and subsequent to a
marital or other type of separation). FOF 61 reads: “Until the
minor children moved to Maui, Father actively and equally
participated in the rearing of the minor children.” Even though
Mother was a “stay-at-home mom” while Father worked in Utah,
Father testified that “I’d come home [from work] and we’d cook
dinner. I’d help change diapers, clean rooms, play with the
kids as much as I could, help put them to bed. We all shared
the same bed.” Paternal Grandmother also testified that
“[Father] always has been an everyday part of their life. It’s
only since they moved to Hawaii that he hasn’t.”
Since moving to Hawaiʻi, Father has sought to improve his
circumstances so that he can be a present, involved parent. He
took a second job, and obtained his employer’s permission to use
a three-bedroom home on the farm for when his children visited.
He visited the children and co-parented with Mother at Mother’s
parents’ home on the weekends until Mother began making
accusations of abuse.
FOFs 54 through 64, supported by the record, detail full
family support in Utah. Father testified that he would seek re82
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employment at his prior distribution job in Utah, and that his
employer would let him “come back.” Paternal Grandfather
offered an apartment type living area in his home that Father
and children could reside in. This home would be within ten
miles of Father’s two siblings who are willing to provide child
care for Father while he works. Father’s siblings also have
young children close in age to the children.
The children were born in Utah, and were connected to
family (like their cousins) in Utah before moving to Maui. Even
after moving to Hawaiʻi, the children spoke to their cousins over
FaceTime and “have feelings for one another.” Paternal
Grandmother lives twenty minutes from Father’s proposed
residence, already maintains contact with the children via
FaceTime and phone, and is willing to retire early to help
Father if needed. None of Father’s family have alcohol or drug
issues. Thus, we hold that the record supports the family
court’s holding that awarding Father sole legal and physical
custody of the children, granting the relocation request, and
awarding Mother supervised visitation is in the best interest of
the children.
We hold that there was no abuse of discretion by the family
court.
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8. The family court did not err in finding clear and
convincing evidence of Mother’s abuse of process
Mother alleges that the court based its decision “solely”
on her misuse of process in bringing “false allegations of
abuse.” She maintains that the ICA erred in “summarily”
affirming the family court’s decision to dissolve Judge Heely’s
amended protective order, grant Father sole custody and
relocation to Utah, and limit Mother to supervised visitation
based “solely” on her request for said protective orders.
Mother ignores the record. As detailed, the family court
considered far more than Mother’s abuse of process. Mother’s
argument lacks merit.
We hold that the family court did not clearly err in
concluding that there is clear and convincing evidence that
Mother misused the protection from abuse process.
Per HRS § 571-46(b)(16), the family court may consider
clear and convincing evidence of abuse of process by a parent in
determining the best interest of the child:
(16) A parent’s prior wilful misuse of the
protection from abuse process under chapter 586 to gain a
tactical advantage in any proceeding involving the custody
determination of a minor. Such wilful misuse may be
considered only if it is established by clear and
convincing evidence, and if it is further found by clear
and convincing evidence that in the particular family
circumstance the wilful misuse tends to show that, in the
future, the parent who engaged in the wilful misuse will
not be able to cooperate successfully with the other parent
in their shared responsibilities for the child. The court
shall articulate findings of fact whenever relying upon
this factor as part of its determination of the best
interests of the child.
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HRS § 571-46(b)(16).
The family court found the following related to abuse of
process:
104. Mother filed a total of eight ex parte
petitions for an HRS § 586 temporary restraining order
during the pendency of [this case]. Seven of those eight
ex parte petitions were denied. In light of the full
record and additional information presented before the
Court at trial, the eighth petition will also be dissolved
due to insufficient evidence.
105. By clear and convincing evidence, Mother
misused the protection [from] abuse process under chapter
586 to gain a tactical advantage in this proceeding.
Mother’s misuse of the protection from abuse process was
intentional and voluntary.
106. By clear and convincing evidence, Mother’s
misuse tends to show that she will not be able to cooperate
successfully with Father in their shared responsibilities
for minor children.
Mother filed four sets of TROs on behalf of Jack and Grace
against Father between June 18, 2021, and October 20, 2021.
Though win-loss record is not decisive to HRS § 571-46(b)(16)
misuse of process, seven of the eight TROs were dismissed.
Clear and convincing evidence “will produce in the mind of
the trier of fact a firm belief or conviction as to the
allegations sought to be established, and requires the existence
of a fact be highly probable.” Iddings, 82 Hawaiʻi at 13, 919
P.2d at 275.
Mother filed the TROs in connection with her escalating
allegations and court proceedings. Given the court’s findings
regarding Mother’s coaching of the children to make disclosures,
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and the timing of the TROs, we hold that there was
circumstantial evidence to support that Mother filed TROs to
gain an advantage in the custody proceedings. See id. Thus,
the court did not clearly err in finding that it was highly
probable Mother wilfully abused the protection from abuse
process. See id.
Mother was self-represented when she filed the first two
TROs. She filed the first set of TROs on June 18, 2021, about
two weeks after the family court ruled against her custody
request, and five days after reporting sexual abuse of the
children to MPD. The court dismissed that set of TROs.
On June 30, the day after the June 29, 2021 CJC interview
where neither child made disclosures of sexual abuse, Mother
filed another set of TROs on behalf of the children. There were
no disclosures during the interviews, so the court could
reasonably infer that Mother’s TRO was not filed based on new
information, but rather to gain a tactical advantage. The
petitions were denied without a hearing.
On August 12, 2021, Father filed a motion for emergency
custody and relocation. Mother then filed what the court called
a “rushed TRO” the day before the August 27, 2021 hearing on
Father’s motion for emergency custody and relocation. According
to the court, the TRO contained similar allegations to those
brought when Mother was self-represented. Mother served the TRO
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on Father on August 26 after business hours, but did not serve
Father’s counsel in the morning before the August 27, 2021
hearing.
Mother’s counsel claimed the TRO was filed to prevent
sexual abuse by Father during visits. Father’s counsel
countered that Mother tactically filed the TRO - there were no
scheduled visits before the court hearing. Visitation could
have been discussed in court the next day. The family court was
skeptical of Mother’s intentions. It questioned whether the
filing was made for another reason. The custody evaluator had
“just [submitted] their report on August 5th.” The court thus
questioned Mother’s motives, and whether it was “a strategic
move on [M]other’s part to file this petition after the
professional custody evaluator [filed her report with the
court].” The court also suggested that “it may be a strategic
move on [M]other’s part to alienate, further alienate and deny
[F]ather his rights of meaningful contact with children.”
Those TROs were later dismissed by stipulation. The record
supports that Mother strategically filed the TRO to gain an
advantage during the August 27, 2021 hearing and the proceedings
generally.
On October 20, 2021, Mother again filed a set of TROs. Now
she alleged that the children had disclosed sexual assault to
Dr. Goldberg. The court granted a protective order on behalf of
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Jack in November 2022, and dismissed the TRO filed on behalf of
Grace. (After trial, the family court dissolved the TRO.)
Collectively, this evidence shows that Mother’s misuse of
the protection from abuse process was wilful. See Iddings, 82
Hawaiʻi at 13, 919 P.2d at 275. Thus, we hold that the family
court did not err by finding that Mother wilfully misused the
protection from abuse process by clear and convincing evidence,
and that this factor weighed in Father’s favor in granting
Father custody.
C. Motion for Reconsideration
On April 7, 2022, Mother filed a motion for reconsideration
and further hearing pursuant to HFCR Rules 59 and 60. The
family court denied the motion. The ICA affirmed the family
court’s denial.
Mother argues before this court that “one full day
(1/28/22), a half day (1/31/22) and two hours on a third
(2/15/22), [was] not near enough time for multiple experts and
the parties to address custody, visitation, relocation and a
protective order finding a threat of sex abuse.”
“The family court may grant a motion for a new trial ‘to
all or any of the parties and on all or part of the issues for
good cause shown[.]’” Doe v. Doe, 98 Hawaiʻi 144, 150, 44 P.3d
1085, 1091 (2002) (quoting HFCR Rule 59(a)). A court may grant
a Rule 60(b) motion for relief from judgment or order “upon a
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showing of exceptional circumstances.” Thomas-Yukimura v.
Yukimura, 130 Hawaiʻi 1, 9, 304 P.3d 1182, 1190 (2013) (citing
HFCR Rule 60(b)(6)). Motions for a new trial and
reconsideration are reviewed under the abuse of discretion
standard. Doe, 98 Hawaiʻi at 150, 44 P.3d at 1091.
We hold that the family court did not abuse its discretion
in denying Mother’s motion.
First, we hold that Mother failed to show exceptional
circumstances justifying relief from judgment under HFCR Rule
60(b). As analyzed above, the family court did not abuse its
discretion in awarding Father sole legal and physical custody
and allowing relocation. Mother’s arguments that the family
court was biased and abused its discretion do not constitute
exceptional circumstances justifying relief. See HFCR Rule
60(b). The ICA’s correctly affirmed the family court’s denial
of this motion.
Second, we hold that the family court did not abuse its
discretion in denying the motion for new trial under HFCR Rule
59. Mother did not show good cause. The ICA correctly affirmed
the family court’s denial of this motion.
Mother called nearly the same number of witnesses as
Father. Of the eleven non-party witnesses, Mother called five
witnesses: SW Armstrong, Dr. Goldberg, Nurse Baumstark,
Psychologist Riggs, and Dr. Teliho. Psychologist Riggs and
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Nurse Baumstark were called as expert witnesses. Mother does
not say how her other four proposed expert witnesses (two were
Utah-based realtors) would have added further probative evidence
as to whether Father should have sole legal and physical custody
of the children. See Doe, 98 Hawaiʻi at 156, 44 P.3d at 1097
(court abused its discretion in declining to allow any of
Mother’s witnesses to testify because their testimony “was
pertinent to whether Father should have sole legal and physical
custody of Child”).
Father called six witnesses: Detective Satterfield, CWS
social worker Christianna Bhader, SW Reinecke, Psychologist
Riggs, Paternal Grandmother, and his co-worker. The family
court did not err in allowing Father one more witness than
Mother.
At the close of evidence, the court asked the parties, “Are
there any other matters that the parties need to bring to the
Court’s attention?” Mother did not request to call any more
witnesses. Aside from retrospectively citing the length of the
trial, Mother did not present any reasons for why she could not
have called other witnesses.
Thus, we hold that the court did not abuse its discretion
in denying the motion for reconsideration and continued hearing
under HFCR Rules 60 and 59.
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D. Post-Decree Relief
Given the impact of child custody decisions on children,
parents, and family systems, we stress the availability of postdecree relief in family court proceedings. Custody awards are
subject to modification or change “whenever the best interests
of the child require or justify the modification or change.”
Waldecker v. O’Scanlon, 137 Hawaiʻi 460, 470, 375 P.3d 239, 249
(2016) (citing HRS § 571–46(a)(1) and (6)). Thus, Mother may
seek post-decree relief if she believes the best interest of the
children require modification or change to the existing order.
See id.
III.
We affirm the ICA’s May 6, 2024 judgment, the family
court’s March 28, 2022 Findings of Fact, Conclusions of Law,
Decision and Order, and the family court’s April 25, 2022 Order
Denying Petitioner’s Motion for Reconsideration, Clarification
and Further Hearing.
Peter Van Name Esser /s/ Mark E. Recktenwald for petitioner
/s/ Todd W. Eddins
Benard M. Herren
for respondent /s/ Vladimir P. Devens
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