Newcomb v. McPeek.

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Electronically Filed
Supreme Court
SCAP-15-0000022
01-NOV-2016
09:32 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
WILLIAM NEWCOMB,
Petitioner/Petitioner-Appellant,
vs.
STEPHEN MCPEEK,
Respondent/Respondent-Appellee.
SCAP-15-0000022
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(CAAP-15-0000022; FC-M NO. 14-1-0034K)
NOVEMBER 1, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
Petitioner William Newcomb and Respondent Stephen
McPeek decided together to bring a child into their home.
Although only McPeek legally adopted the child, Newcomb and
McPeek co-parented the child and shared physical custody of her,
even after their separation as a couple. Newcomb brought a
petition for joint custody in the Family Court of the Third
Circuit (family court) based solely on the de facto custody
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provision of Hawaiʻi Revised Statutes (HRS) § 571-46(a)(2), which
was denied. Newcomb appealed the family court’s denial of his
petition and applied for a transfer to this court, which we
granted.
The main issue on appeal concerns the interpretation
and application of Hawaii’s statutory de facto custody provision
and whether it infringes on McPeek’s parental rights. Because
we conclude that the family court misinterpreted and misapplied
the de facto custody provision, we vacate the family court’s
decision and remand the case for further proceedings.
I. BACKGROUND
A. Factual Background
Newcomb and McPeek entered into a committed
relationship in March 2009 and lived together continuously until
October 2013. Child was born in September 2011, and McPeek is
the biological grandfather and legal adoptive father of Child.
The decision to adopt and raise Child was a joint
decision made by McPeek and Newcomb. Together they determined a
first and last name for the baby, giving her the last name
Newcomb-McPeek. Newcomb, McPeek, Child, and McPeek’s teenage
son lived together as a family unit from October 2011 until
October 2013. During this time, Newcomb and McPeek jointly
shared all parental care, duties, and responsibilities for
Child. From the time she could talk, Child referred to McPeek
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as “Papa” and Newcomb as “Daddy.” Newcomb and McPeek discussed
and intended that Newcomb would adopt Child, and they retained
an attorney to accomplish the adoption. However, Newcomb’s
planned adoption of Child never occurred, and although Newcomb
and McPeek discussed entering into a civil union or marriage,
that also never occurred.
After their separation in October 2013, McPeek and
Newcomb entered into a written 50/50 co-parenting agreement for
Child. Under the co-parenting agreement, Newcomb and McPeek
each had actual care and custody of Child from Sunday to
Wednesday and then Sunday to Thursday in alternating weeks.
During the period of the co-parenting agreement, Newcomb and
McPeek communicated through email to discuss Child. McPeek
indicated to Newcomb by email that he wanted Newcomb to have
custody of Child should anything ever happen to him. In April
2014, McPeek sent Newcomb a letter declaring that the written
50/50 co-parenting agreement was revoked on the ground that it
was McPeek’s “parental right” to do so.
B. Newcomb’s Petition for Joint Custody
Newcomb filed a petition for joint custody in the
family court in May 2014, seeking joint legal and joint 50/50
actual physical custody of Child pursuant to HRS § 571-46(a)(2).1
1
HRS § 571-46(a)(2) (Supp. 2013) provides,
(continued . . .)
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Newcomb’s petition alleged that he had de facto joint custody of
Child “in a stable and wholesome home” and that he was “a fit
and proper person to have care, custody, and control of the
minor child.”
The family court held an initial hearing on Newcomb’s
petition for joint custody in June 2014.2 At the June hearing,
the court noted that there were no disputed facts in the case
and that the issue was whether McPeek has the absolute right to
dictate who can have custody of the minor child.
During the evidentiary hearing held in October, McPeek
offered Dr. Jennifer L. De Costa as “an expert in the field of
family behaviors and in the relationship of children with their
families.”3 Newcomb objected to Dr. De Costa’s qualification as
(a) . . . . In awarding the custody, the court shall be
guided by the following standards, considerations, and
procedures:
. . . .
(2) Custody may be awarded to persons other than the
father or mother whenever the award serves the best
interest of the child. Any person who has had de facto
custody of the child in a stable and wholesome home and is
a fit and proper person shall be entitled prima facie to
an award of custody . . . .
2
The Honorable Melvin H. Fujino presided.
3
Dr. De Costa testified that she was a behavior health specialist
at Innovative Hawaiʻi Community Hospital and possessed a bachelor’s degree in
psychology from the University of Hawaiʻi, a master’s degree in science from
Western Washington University, a master’s degree in marriage and family
therapy from University of Oregon, and a doctorate degree from Oregon State
University in family counseling and gerontology.
4
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an expert, asserting that she should be qualified as a marriage
and family counselor; the family court concluded that Dr. De
Costa was an expert in the field of family behavior and
relationships as it relates to children and families.
On direct examination, Dr. De Costa testified
extensively about McPeek’s teenage son. Dr. De Costa was
permitted to testify over Newcomb’s objection that she saw a
correlation between depressive symptoms exhibited by McPeek’s
son and interactions with Newcomb; she discussed this
correlation in reference to McPeek’s son’s performance on tests
used to measure depression and anxiety. Dr. De Costa also
testified regarding her counseling and treatment of Child.
McPeek’s counsel requested Dr. De Costa to assume that Newcomb
had an anger management problem and asked her to offer an
opinion as to whether she would have any concerns of Child
having a custodial relationship with Newcomb. Newcomb objected
to the testimony on the basis that the hypothetical question
assumed facts not in evidence.4 Dr. De Costa was permitted to
opine that she would have concerns about Child having a
relationship with Newcomb. Dr. De Costa was also asked whether
Child would be harmed from termination of the relationship with
4
Newcomb later testified that he had an anger management problem
that interfered with his relationship with McPeek.
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Newcomb; she testified, “This is a hard one. But I don’t--right
now, where she’s at, I don’t think so.”
Newcomb offered Dr. Jamuna Wyss, a clinical
psychologist, as an expert on parent-child psychological
relationships and parenting styles. Dr. Wyss indicated that
Newcomb and McPeek attended couples therapy with him beginning
in October 2013 and that Newcomb continued to be his client in
individual therapy. Dr. Wyss gave a favorable opinion regarding
Newcomb as a parent and the home he provided for Child. Dr.
Wyss also testified regarding the consequences when parent-child
relationships are terminated, opining that there was a
likelihood that termination of the relationship between Newcomb
and Child would result in “immediate-term and long-term damaging
psychological consequences” to Child.
Newcomb’s counsel also attempted to enter into
evidence a clinical note of Dr. Wyss’s related to sex-abuse
allegations involving Newcomb. The court did not accept the
note into evidence and did not allow Dr. Wyss to testify
regarding the allegation because it was outside the scope of Dr.
Wyss’s report. However, Dr. Wyss was permitted to testify that
he was aware of sex-abuse allegations involving Newcomb and that
he did not believe that Newcomb posed a threat of abuse to
Child, “be it sexual, physical, or emotional abuse or neglect.”
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On December 11, 2014, the family court entered its
“Findings of Fact, Conclusions of Law; Order/Final Judgment”
denying Newcomb’s petition for joint custody. The family court
characterized the main issue as follows: “[I]n a State where the
parties can get married or can become a civil union partnership,
if they choose not to, . . . should [Newcomb] be afforded
standing to claim what is known as a ‘psychological father.’”
The court concluded that Newcomb did not have standing as
Child’s “psychological father” because the parties were not
married. Although the family court determined that HRS § 571-46
applied, which allows a custody award to a person who
demonstrates de facto custody of a child, the court concluded
that Newcomb failed to demonstrate “by strict scrutiny a
compelling state interest as to why this ‘de facto’ section
should apply to him when in fact the parties were not married,
and when the options of civil union or marriage were available.”5
II. DISCUSSION
Newcomb’s petition requested joint custody of Child
pursuant to HRS § 571-46(a)(2), asserting that Newcomb “is a
person who has had de facto joint custody of the child in a
5
The family court also found, “In this case the Court will find
compelling the testimony of the child’s therapist, Jennifer De Costa, in the
sense that she testified that in her opinion that the child would not be
harmed and in fact that she did see some regression once the Court allowed
supervised visitation between [Child and Newcomb].”
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stable and wholesome home” and that joint custody was in the
best interests of Child.6 Although the family court determined
that HRS § 571-46(a)(2) was applicable, the court declined to
apply this statutory provision, reasoning that Newcomb failed to
demonstrate “by strict scrutiny a compelling state interest” to
support the application of the statute under the circumstances
of this case. Thus, the primary issues on appeal are whether
the family court properly interpreted and applied HRS § 571-
46(a)(2) and whether its application in this case would infringe
on McPeek’s constitutionally protected parental rights. Newcomb
also challenges several evidentiary rulings regarding the expert
testimony presented at the hearing.
6
Newcomb sought custody of Child based solely on the de facto
provision of HRS § 571-46(a)(2). Additionally, in his opening brief, Newcomb
cites only to HRS § 571-46(a)(2)--and not HRS § 571-46(a)(1)--as a basis for
his claim for custody of Child. Although Newcomb references the “parent by
estoppel” doctrine of other jurisdictions in his opening brief, he does so in
support of his argument that the trial court erred in its determination that
Newcomb was required to show by strict scrutiny a compelling state interest
as to why HRS § 571-46(a)(2) should apply to him. Thus, it appears that to
the extent that Newcomb argues that he satisfies the doctrine adopted by the
Wisconsin Supreme Court, it is to support his argument that the application
of this statute is constitutional.
Accordingly, we do not consider whether Newcomb is a “parent”
eligible to seek custody pursuant to HRS § 571-46(a)(1) or on any other
basis. It is noted that at least one jurisdiction has expanded the
definition of “parent” in a similar statute to include a partner of a
domestic partnership that agrees to conceive a child and to raise the child
together. See Brooke S.B. v. Elizabeth A. C.C., No. 91, 2016 WL 4507780
(N.Y. Aug. 30, 2016).
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A. Interpretation and Application of HRS § 571-46(a)(2)
In cases involving child custody, it is well
established that the guiding consideration is the best interests
of the child. E.g., Doe v. Doe, 98 Hawaiʻi 144, 155, 44 P.3d
1085, 1096 (2002); Fujikane v. Fujikane, 61 Haw. 352, 354, 604
P.2d 43, 45 (1979) (per curiam). The trial court possesses
broad discretion in making custody decisions and in its
determination of what is in the best interests of the child.
Fujikane, 61 Haw. at 354, 604 P.2d at 45 (“It is clear that the
court below possesses wide discretion in making custody
decisions . . . .”). HRS § 571-46(a) provides standards that
apply to a court’s custody decision in proceedings involving a
dispute as to the custody of a minor child:
In awarding the custody, the court shall be guided by the
following standards, considerations, and procedures:
(1) Custody should be awarded to either parent or to both
parents according to the best interests of the child, and
the court also may consider frequent, continuing, and
meaningful contact of each parent with the child unless
the court finds that a parent is unable to act in the best
interest of the child;
(2) Custody may be awarded to persons other than the
father or mother whenever the award serves the best
interest of the child. Any person who has had de facto
custody of the child in a stable and wholesome home and is
a fit and proper person shall be entitled prima facie to
an award of custody;
(3) If a child is of sufficient age and capacity to
reason, so as to form an intelligent preference, the
child’s wishes as to custody shall be considered and be
given due weight by the court . . . .
HRS § 571-46(a)(1)-(3) (Supp. 2013).
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Subsection (a)(1) of this statute concerns the
awarding of custody to the child’s parents and provides that
custody “should be awarded” to either or both parents according
to the best interests of the child. Additionally, the court may
consider continuing and meaningful contact of each parent with
the child unless the parent is unable to act in the best
interests of the child.7 In his petition for custody, Newcomb
does not seek custody based on alleged parental status under
subsection (a)(1).
Subsection (a)(2), upon which Newcomb relies, provides
that custody “may be awarded to persons other than the father or
mother whenever the award serves the best interest of the
child.” Subsection (a)(2) also creates a presumption in favor
of a person under certain circumstances: “Any person who has had
de facto custody of the child in a stable and wholesome home and
is a fit and proper person shall be entitled prima facie to an
award of custody.” Although “de facto custody” is not defined,
we interpret it to mean sole or shared physical custody in
combination with an assumption of incidents of legal custody
enumerated in HRS § 571-2, which include “the duty to protect,
7
“‘Meaningful contact’ means parent and child interactions,
activities, and experiences, performed together, which nurture the parent-
child attachment and relationship, while contributing to the child’s
development in a positive and effective manner.” HRS § 571-2 (2006 & Supp.
2011).
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train, and discipline the minor and to provide the minor with
food, shelter, education, and ordinary medical care.” In other
words, de facto custody is consistent with a parental role.
Accordingly, a person may establish a prima facie case
of de facto custody, by showing that the person (1) is a fit and
proper person (2) who has had de facto custody of the child (3)
in a stable and wholesome home. HRS § 571-46(a)(2). If a
person is able to establish these three elements, then the
person has adduced prima facie evidence that awarding custody to
that person is in the best interests of the child. Nonetheless,
the family court ultimately has the discretion to determine the
custody award that would serve the best interests of the child
based on the entirety of the evidence presented.
Although the family court determined that HRS § 571-
46(a)(2) applies to this case, the court did not determine
whether or not Newcomb established a prima facie case to an
award of custody based on de facto custody.8 However, the family
8
Although we express no opinion as to whether Newcomb established
prima facie that he had de facto custody of child pursuant to HRS § 571-
46(a)(2), it is noted that the record was sufficient to support a finding
that Newcomb had de facto custody of Child because McPeek shared all parental
care, duties, and responsibilities with respect to Child with Newcomb from
October 2011 to October 2013 and then continued to have actual joint custody
of Child until April 2014, pursuant to the written co-parenting agreement.
The family court’s findings would also support a determination that Newcomb
provided a stable and loving home for Child, based on, inter alia, the
court’s findings regarding the period of joint custody and Dr. Wyss’s
testimony that termination of the attachment bond between Newcomb and Child
would be psychologically harmful to Child. The findings that would support
the first two elements may also support a finding that Newcomb was a fit and
(continued . . .)
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court did not make any particular findings that would contradict
Newcomb’s claim of de facto custody pursuant to subsection
(a)(2), and Newcomb provided evidence to support all three
elements of subsection (a)(2) in addition to evidence from Dr.
Wyss that it would be beneficial to Child to have contact with
him. On the other hand, McPeek produced evidence, including
through Dr. De Costa’s testimony, that could be construed to
support a finding that Newcomb is not a fit and proper person
and that it would not be in Child’s best interests for custody
to be jointly awarded to Newcomb.
In declining to apply subsection (a)(2), the family
court reasoned that Newcomb did not adequately demonstrate by
strict scrutiny a compelling state interest that the statute was
constitutional as applied to him.9 The burden, however, is not
on Newcomb to demonstrate the constitutionality of HRS § 571-
46(a)(2). Indeed, “every enactment of the legislature is
presumptively constitutional,” and the “party challenging the
statute has the burden of showing unconstitutionality.” State
v. Mueller, 66 Haw. 616, 627, 671 P.2d 1351, 1358 (1983)
proper person to have custody of Child given that he was involved in co-
parenting Child for the majority of Child’s life.
9
We review the family court’s conclusions of law, including
constitutional questions of law, de novo under the right/wrong standard. See
Doe v. Doe, 116 Hawaiʻi 323, 326, 172 P.3d 1067, 1070 (2007); In re Doe, 95
Hawaiʻi 183, 190, 20 P.3d 616, 623 (2001).
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(quoting Schwab v. Ariyoshi, 58 Haw. 25, 31, 564 P.2d 135, 139
(1977)). Thus, in this case, if joint custody were awarded to
Newcomb, then McPeek would be considered the challenger to HRS §
571-46(a)(2), and McPeek would have the burden of establishing
the statute’s infringement on his constitutionally protected
parental rights. Id.
The family court’s analysis was directly contrary to
this widely accepted presumption that statutes are valid.
Accordingly, the family court erred in requiring that Newcomb
establish the constitutionality of HRS § 571-46(a)(2) before its
application. The family court should have made findings and
conclusions with regard to whether Newcomb satisfied the de
facto custody test of subsection (a)(2) and whether granting of
joint custody was in the best interests of Child.
McPeek argues that HRS § 571-46 prefers that custody
be awarded to the parents of a child and that a non-parent may
only be considered for custody if the court finds that the
parent is unable to act in the best interests of the child. We
do not agree with this rigid interpretation of HRS § 571-46,
which is contrary to the well-settled principle that “the
paramount consideration” in child custody cases is the best
interests of the child. Doe, 98 Hawaiʻi at 155, 44 P.3d 1085 at
1096. While a preference inheres in HRS § 571-46(a)(1) that
custody “should” be awarded to the parents, nevertheless custody
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may be awarded to persons other than a parent and the court
“shall” consider the child’s wishes if the child is of
sufficient age and capacity to reason. HRS § 571-46(a)(1)-(3).
Implicit in McPeek’s proffered interpretation is the concept
that custody will be given either to a parent or nonparent.
However, in reality, there may be instances where the child’s
best interests are served by joint custody where a fit parent
and nonparent share responsibilities for the child.
The court must always determine what would serve the
best interests of the child. HRS § 571-46 provides guidance to
the courts by way of standards, considerations, and procedures,
and ultimately, the court has the flexibility to fashion a
custody award that is in the best interests of the child. In
this case, the family court erred in concluding that Newcomb was
required to establish, as a threshold matter, that the
application of HRS § 571-46(a)(2) to his claim for custody would
be constitutional. Because the court did not make a
determination as to whether Newcomb established a prima facie
case of de facto custody under HRS § 571-46(a)(2) and did not
make findings of fact and conclusions on this ultimate issue,
the record is insufficient for appellate review of the custody
decision. Accordingly, the case must be remanded to the family
court for further proceedings.
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B. McPeek’s Constitutionally Protected Parental Rights
In his answering brief, McPeek argues that HRS § 571-
46(a)(2) “is being utilized by [Newcomb] to attempt to interfere
with [McPeek’s] right to raise his child and protect his child
from the conduct, belief, opinions, language, personality, and
demeanor of [Newcomb].”10 In light of the remand of this case to
the family court, we address McPeek’s constitutional challenge
to HRS § 571-46(a)(2).11
McPeek’s constitutional argument raises questions
regarding whether HRS § 571-46(a)(2) unreasonably interferes
with McPeek’s decision as a parent to no longer share custody
with Newcomb. Accordingly, we consider whether Hawaii’s de
facto custody provision--which uses a “best interests of the
child standard”--unconstitutionally infringes on a person’s
parental rights where the nonparent has had actual custody of
the child in a stable and wholesome home, is a fit and proper
person, the parent has voluntarily incorporated the nonparent
into the family unit sharing parental responsibilities and
10
The record does not indicate whether McPeek notified the Attorney
General of the State of Hawaiʻi of his challenge to the constitutionality of
HRS § 571-46(a)(2) pursuant to his duty under Hawaiʻi Rules of Appellate
Procedure Rule 44.
11
For purposes of considering the constitutional issue raised by
McPeek, we assume that Newcomb satisfies the de facto custody provision.
However, as mentioned, we express no opinion as to whether Newcomb satisfied
the three elements necessary to raise the de facto presumption.
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duties, and the parties subsequently shared custody pursuant to
a written co-parenting agreement.
The Fourteenth Amendment to the United States
Constitution and article I, section 5 of the Hawaiʻi Constitution
provide that no person shall be deprived of “life, liberty, or
property without due process of law.” U.S. Const. amend. XIV, §
1; Haw. Const. art. I, § 5. Under the Hawaiʻi Constitution, we
conduct a two-step inquiry in analyzing procedural due process
claims. We first consider whether a liberty or property
interest has been interfered with by the State, and second, we
determine what specific procedures are required to satisfy due
process. State v. Guidry, 105 Hawaiʻi 222, 227, 96 P.3d 242, 247
(2004). Similarly, when the Due Process Clause “is invoked in a
novel context,” the Supreme Court of the United States “begin[s]
the inquiry with a determination of the precise nature of the
private interest that is threatened by the State.” Lehr v.
Robertson, 463 U.S. 248, 256 (1983); see Washington v.
Glucksberg, 521 U.S. 702, 720 (1997) (noting that the court has
required “‘a careful description’ of the asserted fundamental
liberty interest” (quoting Reno v. Flores, 507 U.S. 292, 301
(1993))). It is only after that interest has been identified
that the court can “properly evaluate the adequacy of the
State’s process.” Lehr, 463 U.S. at 256.
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Whether a parent has a constitutionally protected
liberty interest in deciding that a person who has “de facto
custody” of the child should no longer have custody is a matter
of first impression in this jurisdiction. It has long been
recognized that the due process clause protects certain liberty
interests that parents have in maintaining relationships with
their children and in directing their upbringing. See, e.g.,
Troxel v. Granville, 530 U.S. 57, 65 (2000). Independent of the
United States Constitution, parents have a substantive liberty
interest in the care, custody, and control of their children
protected by the due process clause of article I, section 5 of
the Hawaiʻi Constitution and the right to privacy of article I,
section 6 of the Hawaiʻi Constitution. See Doe v. Doe, 116
Hawaiʻi 323, 334, 172 P.3d 1067, 1078 (2007) (“Parents’ right to
raise their children is protected under article I, section 6 of
the Hawaiʻi Constitution . . . .”); In re Doe, 99 Hawaiʻi 522,
533, 57 P.3d 447, 458 (2002) (“We affirm, independent of the
federal constitution, that parents have a substantive liberty
interest in the care, custody, and control of their children
protected by the due process clause of article 1, section 5 of
the Hawaiʻi Constitution.”).
Although due process jurisprudence recognizes a
substantive liberty interest in directing the upbringing of
one’s child without state interference, the right is largely
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undefined. In Troxel v. Granville, the United States Supreme
Court reviewed the Washington Supreme Court’s determination that
a Washington visitation statute violated the United States
Constitution. A majority of the Court agreed to affirm the
Washington Supreme Court’s decision. The plurality opinion,
written by Justice Sandra Day O’Connor, found that the
Washington visitation statute was “breathtakingly broad” because
its language effectively permitted “any third party seeking
visitation to subject any decision by a parent concerning
visitation of the parent’s children to state-court review.” 530
U.S. at 67-68. The plurality opinion did not define the scope
of the parental right at issue in that case, and one common
thread that runs through nearly all of the six opinions written
in the Troxel case is that the parental right with respect to
visitation decisions remained undefined. See id. at 73 (“We do
not, and need not, define today the precise scope of the
parental due process right in the visitation context.”); id. at
78 (Souter, J., concurring) (“Our cases, it is true, have not
set out exact metes and bounds to the protected interest of a
parent in the relationship with his child . . . .”); id. at 88
(Stevens, J., dissenting) (“While this Court has not yet had
occasion to elucidate the nature of a child’s liberty interests
in preserving established familial or family-like bonds, it
seems to me extremely likely that, to the extent parents and
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families have fundamental liberty interests in preserving such
intimate relationships, so, too, do children have these
interests, and so, too, must their interests be balanced in the
equation.” (citation omitted)); id. at 91-93 (Scalia, J.,
dissenting) (arguing that the constitution does not recognize
the right of a parent to direct the upbringing of their children
and indicating that he would not extend the theory of the cases
recognizing any such right “to this new context”); id. at at
100-01 (Kennedy, J., dissenting) (“In short, a fit parent’s
right vis-à-vis a complete stranger is one thing; another parent
or a de facto parent may be another. The protection the
Constitution requires, then, must be elaborated with care, using
discipline and instruction of the case law system.”). But see
id. at (Thomas, J., dissenting) (arguing that “parents have a
fundamental constitutional right to rear their children,
including the right to determine who shall educate and socialize
them”). Similarly, the scope of the parental right in the
context of custody proceedings between a parent and a nonparent
who has “de facto custody” of the child has not been defined by
the Supreme Court.
The Supreme Court’s cases regarding the interests of
parents in the care, custody, and control of their children may
be grouped into two categories: (1) cases involving a natural
parent’s right to parent a child and maintain the parent-child
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relationship12 and (2) cases involving state interference with a
parent’s decision regarding the child.13 This case does not call
into question the potential termination of McPeek’s parental
rights, but rather, it involves McPeek’s right to determine who
has custody and access to Child. Because the Court did not
define the parental right in Troxel, there are no Supreme Court
opinions discussing circumstances analogous to this case. See
supra notes 12-13.14
12
See Santosky v. Kramer, 455 U.S. 745, 768 (1982) (holding that a
state’s use of a “fair preponderance of the evidence” standard at a parental
rights termination proceeding violated the Due Process Clause); Quilloin v.
Walcott, 434 U.S. 246, 255 (1978) (holding that the natural father’s
substantive due process rights were not violated by application of the “best
interests of the child” standard where natural father had not previously
sought actual or legal custody of child); Stanley v. Illinois, 405 U.S. 645,
(1972) (holding that natural father “was entitled to a hearing on his fitness
as a parent before his children were taken from him and that, by denying him
a hearing and extending it to all other parents whose custody of their
children is challenged, the State denied [father] the equal protection of the
laws guaranteed by the Fourteenth Amendment”).
13
See Troxel, 530 U.S. at 67-68 (holding as facially
unconstitutional a statute allowing any third party seeking visitation to
subject any decision by a parent concerning visitation of the parent’s
children to state-court review); Wisconsin v. Yoder, 406 U.S. 205, 234 (1972)
(holding that the First and Fourteenth Amendments prevented the State of
Wisconsin from compelling Amish parents to “cause their children to attend
formal high school at age 16”); Prince v. Massachusetts, 321 U.S. 158, 443-44
(1944) (holding that a state statute prohibiting children from distributing
magazines on the street did not violate child’s First Amendment rights or
child’s custodian’s First and Fourteenth Amendment rights to give child
religious training); Pierce v. Soc’y of the Sisters, 268 U.S. 510, 535 (1925)
(holding that a state statute requiring children to attend public school
“unreasonably interfere[d] with the liberty of parents and guardians to
direct the upbringing and education of children under their control”); see
also Parham v. J. R., 442 U.S. 584, 603 (1979) (holding that a state statute,
which allowed voluntary admission of minor children to mental hospitals by
parents or guardians, did not per se violate the children’s substantive due
process rights).
14
The Massachusetts Supreme Court observed that the following
principles clearly emerged from the Troxel plurality decision:
(continued . . .)
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In Doe, this court considered the constitutionality of
a statute allowing for any grandparent residing in the same
state of their grandchild to petition for visitation and
allowing the court to grant the petition so long as it was in
the best interests of the child.15 116 Hawaiʻi at 325, 172 P.3d
at 1069. Applying strict scrutiny, the court concluded that
“proper recognition of parental autonomy in child-rearing
decisions requires that the party petitioning for visitation
demonstrate that the child will suffer significant harm in the
absence of visitation before the family court may consider what
degree of visitation is in the child’s best interests.” Id. at
335-36, 172 P.3d at 1079-80. Accordingly, the court held that
(i) reaffirmation that a parent’s liberty interest in child
rearing is indeed fundamental, and is certainly fundamental
in this context;
(ii) “any third party” should not be permitted to seek
visitation;
(iii) in determining whether grandparent visitation should
occur, there exists a “presumption that a fit parent will
act in the best interest of his or her child,” and the
decision of a fit parent concerning grandparent visitation
is entitled to considerable deference; and
(iv) in determining whether grandparent visitation should
occur, the potential impact to the parent-child
relationship should be considered.
Blixt v. Blixt, 774 N.E.2d 1052, 1058-59 (Mass. 2002) (citations omitted)
(quoting Troxel, 530 U.S. at 67, 69).
15
The court also suggested that the statute was not facially
unconstitutional under the Due Process Clause of the Fourteenth Amendment.
See Doe, 116 Hawaiʻi at 333, 172 P.3d at 1077 (concluding that the grandparent
visitation statute “comport[ed] with the limited requirements expressed in
Troxel”).
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the statute was facially unconstitutional because it did not
include the “harm to the child” standard required by the right
to privacy under the Hawaiʻi Constitution.16 Id. at 336; 172 P.3d
at 1080. Thus, a parent’s fundamental right to direct the
upbringing of his or her child was implicated “where a nonparent
third party petitione[d] for visitation,” and the State could
not interfere with the parent’s decision absent a finding that
the parent’s decision to deny access to the child would result
in harm to the child. Id.
Subsequently, the ICA considered whether the
application of the doctrine of equitable estoppel in a custody
proceeding infringed on a mother’s parental rights. See Inoue
v. Inoue, 118 Hawaiʻi 86, 101, 185 P.3d 834, 849 (App.), cert.
denied, 118 Hawaiʻi 194, 186 P.3d 629 (2008). In Inoue, the
family court equitably estopped the biological mother of a child
from denying that her husband was the father of her child for
the purposes of determining custody. Id. at 88, 185 P.3d at
836. The mother and her husband in Inoue met when she was
pregnant with the child. Id. at 88-89, 185 P.3d at 836-37. The
mother did not identify any father on the child’s original birth
certificate, but at some point after the birth of the child, the
16
Doe ruled that the statute was unconstitutional under article I,
section 6 of the Hawaiʻi Constitution only. See 116 Hawaiʻi at 335-36, 172
P.3d at 1079-80.
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child’s birth certificate was changed to reflect the husband as
the child’s father. Id. at 89, 185 P.3d at 837. The mother and
husband were subsequently married, had two additional children,
and lived together as a family until their separation seven
years later. Id. The family court in Inoue awarded husband
sole legal and physical custody of all three children, while
granting mother visitation rights. Id. at 91, 185 P.3d at 839.
The mother appealed the family court’s decision to the ICA
arguing that the family court could not award husband custody of
the oldest child because he was not the child’s legal father and
she was not unfit. Id. at 92, 185 P.3d at 840.
The ICA concluded that the family court did not err in
holding that the husband was the legal father of the child under
Hawaii’s presumption of paternity statute and that the mother
was estopped from challenging her husband’s parentage of the
child. Id. at 94, 185 P.3d at 842. The ICA also considered
whether the application of the doctrine of equitable estoppel
infringed on the mother’s parental rights under a plain error
standard of review. Id. at 99-101, 185 P.3d at 847-49. The ICA
concluded that the application of the doctrine of equitable
estoppel did not infringe on the mother’s liberty interests
because she voluntarily rendered her parental rights with
respect to the child “less exclusive and less exclusory” with
regard to her husband. Id. at 101, 185 P.3d at 849 (quoting
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Rubano v. DiCenzo, 759 A.2d 959, 976 (R.I. 2000)). The ICA
reasoned,
By marrying Egan and then adding his name to Child One’s
birth certificate, Gina created the circumstances under
which Egan became Child One’s “legal father.” By
representing to him that he had adopted Child One when he
allowed his name to be added to the certificate, Gina led
Egan to take no action to further investigate or establish
his status as Child One’s father. Finally, Gina allowed
Egan to assume the role of Child One’s father and to become
Child One’s psychological parent.
Id. at 100-01, 185 P.3d at 848-49 (footnote omitted).
Inoue relied on the Rhode Island Supreme Court’s
decision in Rubano, which concerned two women who agreed to
become the parents of a child. 759 A.2d at 961. They arranged
for one of them to conceive via artificial insemination, and
they raised the child together for four years while living
together as a family in Massachusetts. Id. They gave the child
both of their last names separated by a hyphen on the child’s
birth certificate and sent out printed birth announcements
identifying both of them as the child’s parents, although the
parental status was never legally settled by adoption. Id.
When the couple separated, the biological mother took the child
with her to Rhode Island, and, initially, the biological mother
agreed to a visitation schedule for her former partner to see
the child. Id. at 961. Later, when the biological mother was
resistant to the visitation arrangements, the former partner
initiated legal proceedings seeking to establish her de facto
parental status and obtain court-ordered visitation. Id. at
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961-62. The parties negotiated a compromise that was embodied
in a consent order, specifying that the former partner would
have permanent visitation with the child on a periodic basis in
exchange for waiving any claim to parent the child. Id. at 962.
In later proceedings, the biological mother asserted that the
court lacked jurisdiction to enter the consent order. Id.
The Supreme Court of Rhode Island considered whether
the biological mother had a protected liberty interest under the
Due Process Clause of the Fourteenth Amendment to terminate the
relationship between her former partner and child. The Rhode
Island court concluded that the biological mother rendered her
own parental rights with respect to her child “less exclusive
and less exclusory” than they otherwise would have been had she
not “by word and deed” allowed her former partner to establish a
parental bond with the child and also agreed to allow
visitation. Id. at 976. The court reasoned that “the mere fact
of biological parenthood, even when coupled with the biological
parent’s ongoing care and nurture of the child and that parent’s
fundamental right . . . , does not always endow the biological
parent with the absolute right to prevent all third parties from
ever acquiring any parental rights vis-à-vis the child.” Id.
The Inoue and Rubano decisions are consistent with the
United States Supreme Court’s cases defining the parental
liberty interest. Constitutionally protected parental rights
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are not based solely on legal or biological ties, and the
Supreme Court has recognized “that the rights of the parents are
a counterpart of the responsibilities they have assumed.” Lehr,
463 U.S. at 257. Stated another way, “A parent’s rights with
respect to her child have thus never been regarded as absolute,
but rather are limited by the existence of an actual, developed
relationship with a child, and are tied to the presence or
absence of some embodiment of family.” Troxel, 530 U.S. at 88
(Stevens, J., dissenting). The Supreme Court has recognized
that “[t]he importance of the familial relationship, to the
individuals involved and to the society, stems from the
emotional attachments that derive from the intimacy of daily
association, and from the role it plays in ‘promot[ing] a way of
life’ through the instruction of children as well as from the
fact of blood relationship.’” Lehr, 463 U.S. at 261 (second
alteration in original) (quoting Smith v. Org. of Foster
Families for Equality & Reform, 431 U.S. 816, 844 (1977)); see
also Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (holding that
“best interests of the child standard” did not violate a natural
father’s parental rights in adoption proceedings that terminated
his parental rights where natural father did not marry the
mother and had not at any time sought actual or legal custody of
his child).
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The scope of parental rights is also defined in
reference to the State’s authority and duty to protect children
in addition to the rights of children. See Troxel, 530 U.S. at
88 (Stevens, J., dissenting) (observing that limitations on
parental rights “have arisen, not simply out of the definition
of parenthood itself, but because of [the Supreme Court’s]
assumption that a parent’s interests in a child must be balanced
against the State’s long-recognized interests as parens patriae
and, critically, the child’s own complementary interest in
preserving relationships that serve her welfare and protection”
(citations omitted)). Indeed, with regard to the Troxel
decision, a majority of the court contemplated that even where
the parent has a developed, legal parent-child relationship with
the child, there may be special factors that justify state
interference. See Troxel, 530 U.S. at 68, 73 (plurality)
(declining to define the precise scope of the parental due
process right, relying instead on the “sweeping breadth” of the
statute and application of “broad, unlimited power,” and noting
the absence of “special factors that might justify the State’s
interference”); id. at 89 (Stevens, J., dissenting) (“The
constitutional protection against arbitrary state interference
with parental rights should not be extended to prevent the
States from protecting children against the arbitrary exercise
of parental authority that is not in fact motivated by an
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interest in the welfare of the child.”); id. at 99 (Kennedy, J.,
dissenting) (“In the design and elaboration of their visitation
laws, States may be entitled to consider that certain
relationships are such that to avoid the risk of harm, a best
interests standard can be employed by their domestic relations
courts in some circumstances.”); cf. id. at 92 (Scalia, J.,
dissenting) (stating that he would not extend the theory of
parental rights to extend to visitation decisions).
Relying on the plurality in Michael H. v. Gerald D.,
491 U.S. 110 (1989), the Rhode Island Supreme Court noted that
“under certain circumstances, even the existence of a developed
biological parent-child relationship . . . will not prevent
others from acquiring parental rights vis-à-vis the child.”
Rubano, 759 A.2d at 974; see also Troxel, 530 U.S. at 87-88
(Stevens, J., dissenting) (discussing Michael H.). Indeed, as
Justice Kennedy stated in his dissenting opinion in Troxel,
“Cases are sure to arise--perhaps a substantial number of cases-
-in which a third party, by acting in a caregiving role over a
significant period of time, has developed a relationship with a
child which is not necessarily subject to absolute parental
veto.” 530 U.S. at 98 (Kennedy, J., dissenting) (citing Michael
H., Quillon, and Lehr); see also id. at 64 (plurality)
(“[P]ersons outside the nuclear family are called upon with
increasing frequency to assist in the everyday tasks of child
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rearing.”). Accordingly, “a fit parent’s right vis-à-vis a
complete stranger is one thing; her right vis-à-vis another
parent or a de facto parent may be another.” Id. at 100-101
(Kennedy, J., dissenting).
In this case, the parties made a joint decision to
adopt and raise Child. Together, the parties named Child,
giving her the last name Newcomb-McPeek, and they lived together
with McPeek’s teenage son as a family unit for a two-year
period. From the time she could talk, Child referred to McPeek
as “Papa” and Newcomb as “Daddy,” and they jointly shared all
parental care, duties, and responsibilities for Child from the
time she was one month old. Although Newcomb and McPeek
intended that Newcomb would adopt Child and retained an attorney
to accomplish the adoption, the adoption never occurred.
Additionally, following their separation, the parties continued
to attend counseling together and entered into a 50/50 written
co-parenting agreement. Accordingly, it appears from the family
court’s findings that McPeek voluntarily incorporated Newcomb
into the family unit and encouraged him to share parental
responsibilities and custody of Child.
As the mother in Inoue facilitated the “circumstances
under which [her husband] became [her oldest child’s] ‘legal
father,’” McPeek voluntarily shared custody of Child with
Newcomb and, thus, made his own parental rights less exclusive
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vis-à-vis Newcomb. See Inoue, 118 Hawaiʻi at 101, 185 P.3d at
849; see also 530 U.S. at 98 (Kennedy, J., dissenting) (“[A] fit
parent’s right vis-à-vis a complete stranger is one thing; her
right vis-à-vis another parent or a de facto parent may be
another.”).17 The circumstances of this case are entirely
distinguishable from those governed by the grandparent
visitation statute considered in Doe. See 116 Hawaiʻi at 325,
172 P.3d at 1069. In this case, McPeek voluntarily allowed
Newcomb to share physical custody of Child in addition to
17
Cf. Smith v. Guest, 16 A.3d 920, 931 (Del. 2011) (holding that de
facto parent statute did not violate the due process rights of child’s other
legal parent because a de facto parent would also be a “legal ‘parent’” that
would share a “co-equal ‘fundamental parental interest’” in raising the child
with the other parent); C.E.W. v. D.E.W., 845 A.2d 1146, 1152 (Me. 2004)
(holding that person’s status as the de facto parent of a child authorized
the court to consider an award of parental rights and responsibilities to the
person as a parent based on its determination of the best interest of the
child); Rubano, 759 A.2d at 974 (“[U]nder certain circumstances, even the
existence of a developed biological parent-child relationship . . . will not
prevent others from acquiring parental rights vis-à-vis the child.”); Brooke
S.B. v. Elizabeth A. C.C., No. 91, 2016 WL 4507780 (N.Y. Aug. 30, 2016)
(expanding the definition of “parent” to include a partner of a domestic
partnership that agrees to conceive a child and to raise the child together);
In re Parentage of L.B., 122 P.3d 161, 177 (Wash. 2005) (“We thus hold that
henceforth in Washington, a de facto parent stands in legal parity with an
otherwise legal parent, whether biological, adoptive, or otherwise.”); In re
Custody of B.M.H., 315 P.3d 470, 478 (Wash. 2013) (en banc) (“The de facto
parentage doctrine incorporates constitutionally required deference to
parents by requiring that the biological or legal parent consent to and
foster the parentlike relationship. Once a petitioner has made the threshold
showing that the natural or legal parent consented to and fostered the
parent-like relationship, the State is no longer ‘interfering on behalf of a
third party in an insular family unit but is enforcing the rights and
obligations of parenthood that attach to de facto parents.’” (quoting In re
Parentage of L.B., 122 P.3d 161 (Wash. 2005) (en banc))); Randy A.J. v. Norma
I.J., 655 N.W.2d 195, 201 (Wis. 2002) (noting that under Wisconsin’s
equitable parent doctrine, “[o]nce a court determines that a party is an
equitable parent, there is no distinction between the equitable parent and
any other parent; each is endowed with the same rights and responsibilities
of parenthood”), aff’d, 677 N.W.2d 630.
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sharing the duties and responsibilities for parenting child, and
thus the circumstances do not implicate the Hawaiʻi
Constitution’s right to privacy as the grandparent statute in
Doe did.18
Additionally, we cannot conclude that McPeek has
established the statute is facially unconstitutional. See
United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial
challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the
Act would be valid.”). The de facto custody provision of HRS §
571-46(a)(2) simply does not have the broad sweep that the
grandparent visitation statute in Doe had. Indeed, HRS § 571-
46(a)(2) is one of several “standards, considerations, and
procedures” that HRS § 571-46 provides for family courts tasked
with handling custody and visitation disputes; it is but one
tool in a court’s toolbox for navigating the varying and complex
circumstances that may arise when custody to a child is in
dispute. Additionally, HRS § 571-46 includes subsection (a)(1),
18
Our decision is based on the circumstances presented by this
case. We note that a parent does not relinquish his or her parental rights
by merely relying on childcare assistance from others. As stated, de facto
custody is not established by mere physical custody of a child. Nonetheless,
we decline to adopt a bright line rule regarding the extent of a parent’s
protected liberty interest as “the constitutional protections in this area
are best ‘elaborated with care’” on a case-by-case basis. See Troxel, 530
U.S. at 73 (plurality) (quoting id. at 101 (Kennedy, J., dissenting)).
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which provides custody should be awarded to either parent or to
both parents according to the best interests of the child, and
importantly, HRS § 571-46(a)(2) may also apply under
circumstances where no parent or no fit parent seeks custody of
the child. HRS § 571-46 is therefore notably distinguishable
from the grandparent visitation statute in Doe. Indeed, the
apparent purpose of the statute in Doe was to provide
grandparents a means to circumvent the decisions of parents
based on the legislature’s finding that “grandparents play a
significant role in the lives of minor children and should be
allowed reasonable visitation rights so long as it is in the
best interests of the child.” Doe, 116 Hawaiʻi at 332 n.6, 172
P.3d at 1076 n.6 (quoting Sen. Stand. Comm. Rep. No. 1053, in
1993 Senate Journal, at 1154). The grandparent visitation
statute was facially invalid as it undermined a parent’s
judgment to not allow grandparents access to one’s child based
merely on a finding that grandparent visitation was in the
child’s best interests. Id. (“Indeed, there can be no doubt
that the legislature intended that visitation, if found by a
court to be in the best interests of the child, may be ordered
over a parent’s objection”); see Troxel, 530 U.S. 57, 67, 120 S.
Ct. 2054, 2061, 147 L. Ed. 2d 49 (2000) (“[I]n practical effect,
in the State of Washington a court can disregard and overturn
any decision by a fit custodial parent concerning visitation
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whenever a third party affected by the decision files a
visitation petition, based solely on the judge’s determination
of the child’s best interests.”). While there certainly may be
situations where a family court’s application of HRS § 571-
46(a)(2) may violate a parent’s constitutionally protected
liberty interests, we do not conclude that the statute is
facially invalid as the grandparent visitation statute in Doe
was.
In distinguishing Inoue, the family court placed great
emphasis on the fact that the parties never married or entered
into a civil union. While it is true that the Inoue opinion
discusses the fact that the parties were married in its
analysis, it was important only because marriage was relevant to
the paternity statute that was specifically challenged by the
mother in Inoue.19 See Inoue, 118 Hawaiʻi at 94, 185 P.3d at 842.
In that case, the biological mother’s husband and the child had
19
HRS § 584-4(a)(3)(B) (2006) provides,
A man is presumed to be the natural father of a child if:
. . .
After the child’s birth, he and the child’s natural mother
have married, or attempted to marry, each other by a marriage
solemnized in apparent compliance with law, although the
attempted marriage is or could be declared invalid, and:
. . .
With his consent, he is named as the child’s father on the
child’s birth certificate . . . .
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a presumptive “parent child relationship” pursuant to HRS § 584-
4(a)(3)(B) because of the subsequent marriage of the parties and
inclusion of husband on the birth certificate. Id. Thus,
marriage was an essential element of the statute challenged by
the mother in Inoue, and her voluntary creation of the
circumstances giving rise to the presumptive parent-child
relationship was important to the ICA, not the existence of a
marriage itself. See id. at 100, 185 P.3d at 848. Indeed,
Inoue found the reasoning of the Rubano case persuasive, see
id., although the parties were not married and the relationship
of the parties was not discussed as an essential fact. See
Rubano, 759 A.2d at 976. The heart of the Rubano decision
concerned the relationship of the parties with the child--not
the relationship between the parties. See id. at 974. In any
event, marriage is not an element of the de facto presumption of
HRS § 571-46(a)(2), the provision on which Newcomb bases his
claim for joint custody of Child.20
20
Application of the family court’s marriage requirement would mean
that a grandparent or other family member, such as a hānai parent, would
never be able to establish a de facto custodial relationship with a child so
long as the biological parent remains in the child’s life, even where the
child views the third party as his or her only parental figure.
By extension, we do not agree with McPeek’s contention that
application of the de facto custody provision would create significant
burdens that would apply to all domestic relationships where a single parent
is involved as this is not a case where the parties simply lived together
with a child. See State v. Sturch, 82 Hawaiʻi 269, 274, 921 P.2d 1170, 1175
(App. 1996) (“A person to whom a statute may be constitutionally applied
cannot challenge the statute on the ground that it may conceivably be applied
(continued . . .)
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Therefore, because McPeek permitted Newcomb to share
physical custody of Child in addition to the parenting
responsibilities and duties with regard to Child, McPeek does
not have a protected privacy interest in excluding Newcomb from
Child’s life under the Due Process Clause of the Fourteenth
Amendment or the Hawaiʻi Constitution’s due process and privacy
protections. As such, McPeek has not demonstrated that the
application of HRS § 571-46(a)(2) under the circumstances of
this case would implicate his parental rights protected under
the federal or Hawaiʻi constitutions.
Given McPeek has not established that HRS § 571-
46(a)(2) impacted a protected liberty interest nor a privacy
interest under the Hawaiʻi Constitution, the statute’s prima
facie de facto provision, which includes the best interests of
the child standard, satisfies due process. See HRS § 571-
46(a)(2). Indeed, HRS § 571-46(a)(2) provides McPeek with ample
protections as he has not demonstrated the implication of a
protected liberty interest. HRS § 571-46(a)(1) favors the
unconstitutionally to others.” (quoting State v. Kaneakua, 61 Haw. 136, 143,
597 P.2d 590, 594 (1979)). Indeed, we do not believe a person would be
considered a “proper” person to have custody of the child under HRS § 571-
46(a)(2) where the person’s sole connection to the child is a relationship
with the parent. Additionally, we note that living in a household with a
child is not equivalent to having custody of a child although it may be
relevant to the issue.
Additionally, McPeek’s contention that the absence of a legal
financial responsibility upon Newcomb to support Child renders him ineligible
to be awarded custody is unsupported by HRS § 571-46(a)(2).
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awarding of custody to the child’s parents, providing that
custody “should be awarded to either or both parents,” and it
also provides for the maintenance of meaningful contact between
the parent and child unless the parent “is unable to act in the
best interest of the child.” HRS § 571-46(a)(2) states that
custody “may” be awarded to a person who is not a parent
“whenever the award serves the best interest of the child,” and
it also creates a presumption in favor of awarding custody under
limited circumstances to a person who has de facto custody.
Accordingly, the de facto presumption, which is also subject to
the best interests of the child standard, would only apply when
the nonparent custodian is able to demonstrate that he or she
(1) has had “de facto custody” of the child (2) in a stable and
wholesome home and that (3) the custodian is a fit and proper
person. Given that no protected liberty interest is
demonstrated by McPeek, the statute satisfies due process as
applied in this case.21 McPeek has therefore not established
that an award of custody to Newcomb under HRS § 571-46(a)(2)
21
The adequacy of the statute is evaluated in reference to whether
a significant liberty interest is implicated. See Guidry, 105 Hawaiʻi at 227,
96 P.3d at 247; see also Lehr, 463 U.S. at 256. The Due Process Clause
“provides heightened protection against government interference with certain
fundamental rights and liberty interests.” Troxel, 530 U.S. at 65
(plurality). As we conclude that McPeek’s fundamental parental rights are
not implicated under the circumstances of this case, we need not apply a
heightened scrutiny in evaluating whether HRS § 571-46(a)(2) satisfies due
process. Cf. Doe, 116 Hawaiʻi at 335, 172 P.3d at 1079 (applying strict
scrutiny in determining that grandparent visitation statute was facially
unconstitutional under the Hawaiʻi Constitution’s right to privacy).
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would impair his parental rights under the federal or Hawaiʻi
constitutions.22
III. CONCLUSION
For the reasons discussed, the family court
misapprehended the law when it required Newcomb to establish
that the application of HRS § 571-46(a)(2) would be
constitutional if applied to his request for joint custody of
Child. The plain language of HRS § 571-46(a)(2) contemplates
standing to seek custody when a person has had “de facto
custody” of a child and meets the other requirements of HRS §
571-46(a)(2). Further, we hold that McPeek failed to establish
that the application of HRS § 571-46(a)(2) to this case would
infringe on his fundamental liberty interests or otherwise
violate his right to privacy under the Hawaiʻi Constitution.23
22
Although it is not necessary to address in this case, it is noted
that the State has a compelling state interest in maintaining the presence of
a child in a stable and wholesome home with fit and proper persons. The
State’s compelling interest and duty with regard to the welfare of children
has long been recognized in this jurisdiction. See In re Guardianship of
Thompson, 32 Haw. 479, 486 (1932). In addition, HRS § 571-46(a)(2) protects
the interests and rights of children. See Troxel, 530 U.S. at 89 n.9
(collecting cases demonstrating that children have constitutionally protected
rights).
23
We reject Newcomb’s evidentiary challenges to the expert
testimony presented at the hearing. Given her education and experience, Dr.
De Costa was qualified to testify as an expert in the field of family
behaviors and in the relationship of children with their families. See HRS §
571-46(a)(5) (providing that the court may decide that qualified “expert’s
testimony is relevant to a just and reasonable determination of what is for
the best physical, mental, moral, and spiritual well-being of the child whose
custody is at issue”). The hypothetical opinion elicited from Dr. De Costa
was admissible under Hawaiʻi Rule of Evidence (HRE) Rule 703. See HRE Rule
703 cmt (1993). Dr. De Costa’s opinions regarding the potential harm to
(continued . . .)
37
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Accordingly, we remand the case for proper application of HRS §
571-46(a)(2), including a determination as to whether Newcomb
satisfies the three elements of HRS § 571-46(a)(2) and, if so,
for a custody award in Child’s best interests.
Accordingly, the family court’s December 11, 2014
“Findings of Fact, Conclusions of Law; Order/Final Judgment” is
vacated, and the case is remanded to the family court for
further proceedings consistent with this opinion.
Michael S. Zola /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian J. De Lima, /s/ Sabrina S. McKenna
Francis R. Alcain and
Justin P. Haspe /s/ Richard W. Pollack
for respondent /s/ Michael D. Wilson
Child as a result of the termination of the relationship between Newcomb and
McPeek and the doctor’s concerns about Child having a continued relationship
with Newcomb were relevant, within the doctor’s expertise, and would assist
the court in determining Child’s best interests. See HRS § 571-46(a)(5).
Dr. De Costa’s testimony regarding the mental health of McPeek’s son,
including her diagnosis, was admissible as a proper foundation was laid, and
it was relevant to the court’s consideration of the best interests of Child
and whether Newcomb was a fit and proper person for purposes of applying the
de facto custody presumption of HRS § 571-46(a)(2). Dr. De Costa’s testimony
regarding McPeek’s son’s test scores was admissible under HRE Rule 703
without their introduction into evidence. And, the family court’s finding of
fact regarding Dr. De Costa’s testimony did not misstate her testimony and
was supported by the record.
With regard to Dr. Wyss’s testimony, it appears that the court
considered the testimony of Dr. Wyss, but it found Dr. De Costa’s testimony
more compelling, which is within the province of the trial court. See Exotics
Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116 Hawaiʻi. 277, 299, 172
P.3d 1021, 1043 (2007). Lastly, any error by the family court in restricting
Dr. Wyss’s testimony to the contents of his report, or in not admitting his
progress notes, was harmless because Dr. Wyss was permitted to testify that
he was aware of the sex-abuse allegations against Newcomb and that he did not
believe that Newcomb posed a threat of abuse to Child. However, if further
evidentiary proceedings are held on remand, the family court may revisit its
ruling regarding the proffered evidence.
38