Hawaii is a beautiful place, and there is nothing better than feeling lucky to live in Hawaii. But what if you don’t feel lucky? What if you believe that Hawaii is just not the right place for you? You start to think about moving to another state, where public schools may be better, rent and groceries are not so expensive, and childcare is easier to find.
Leaving Hawaii starts to feel like the best solution to your troubles. You can move back home where your friends and family are, where you have support. You and the kids could even move in with your parents and save money to buy a house: Can you just go? Do you need permission from your children’s other parent? And if they don’t agree, what do you do? Are you stuck in Hawaii until the kids are 18?
Being on Either Side of the Relocation Decision
Or you’re the parent that loves Hawaii, has a life here, has family and deep roots. You just found out that your child’s other parent wants to move back to the continental US (otherwise known as, “the Mainland”) with your child. You not only can’t imagine living thousands of miles away from your child; you can’t imagine your child losing out on all Hawaii has to give and experiencing the type of childhood you had surrounded by ohana, nature, the ocean, and the culture. Can you just tell them, "No way, you can’t go?" Does it matter that you both agreed to raise your children in Hawaii? How can it be fair that they changed their mind now?
I want to make the distinction immediately regarding either parent’s right to take a child on a vacation, or somewhere temporary, with the intention of returning at some point in the future. If you’re being told by your partner that you cannot travel with your children for a vacation, to see your parents, to have a break, you can
connect with me to learn your legal rights regarding travelling with your children.
What to Consider in a Relocation Situation
Unfortunately, if you relate to either of the above scenarios, you may be headed for a family court relocation case. A relocation case is when one parent would like to leave Hawaii and move to another state, or country, with their child, and the other parent objects. This blog post talks about relocation cases in Hawaii—what they are, how family court deals with relocation cases—and offers you some ideas about how you can avoid the emotional and financial cost of fighting about relocation in court.
As a family law attorney licensed to practice in Hawaii for 30 years, I’ve been on both sides and in the middle of relocation cases; I’ve represented the parents who wanted to leave Hawaii with their children, the parents who wanted their children to stay in Hawaii. I’ve been the court-appointed neutral 3rd party, investigating and meeting with children and their parents and families and writing report for the Judge about each parent’s position and making recommendations to the Judge about whether the child should go or stay.
Relocation cases are difficult, especially when a child is very young, and it would clearly be very challenging to maintain the parent-child relationship with the long-distance parent. This is not to say they are impossible to settle; sometimes, with a good mediator, parenting counselor, or helpful, settlement-minded attorneys, parents can reach an agreement. I’ll talk more about that at the end of this post.
In my experience, parents fight relocation not just because they don’t want to live far away from their children, but because they want to make sure their children knew that ‘they fought for them.” They hate the idea that their kids might believe they “allowed” the other parent to relocate with them, or that they themselves “chose” to leave their child in Hawaii. Relocation cases involve a lot of emotion and heartache, and the outcome—a child living during the school year with one parent and spending all or part of holidays and school breaks with the other parent—may never feel exactly right for either parent.
What does the Hawaii Legal System Say about Relocation?
Relocation and Children’s Best Interest
Best interests are defined, generally, in Hawaii Revised Statutes Sec. 571-46. Review the best interest factors and look for my upcoming blog discussing
these factors. In that post, I’ll talk about how they are used to award custody to one or both parents. If you have immediate questions,
please contact me. In most cases, with some exceptions, it is difficult for a child to live thousands of miles away from either parent; therefore, arguing that it is in a child’s “best interest” to be far away from either one of their parents degenerates into finger pointing and accusations of poor parenting.
In my experience and opinion, the more accurate assessment is examining the, “relative harm” to the child of living primarily with one parent and not the other. They’ll be living with one parent, probably thousands of miles away from the other. They’ll be traveling every school break and holiday, which may be fun, and of course it will be great to see their other parent, but packing, plane flights, and the logistics of travel can be pretty tough on a kid. It’s important to assess whether the benefits of relocation will outweigh the costs to your kids. Parents often tell me, “well, I’ll be happy in the new locations, so they’ll be happy because I’m happy!” This is not altogether wrong: children do better when their parents are happy, but your happiness may or may not be relevant to a Judge. You need to explain why your kids will be better off at the new location, not just why you will be.
Re-thinking Relocation
I ask my clients to look at their relocation case not as one parent being the “primary parent,” and the “long-distance parent,” but by considering which parent will be the, “educational parent” and who will be the “school break” parent. Looking at the case that way gives a parent a little more perspective on what it is they are fighting for when they say they want to relocate (or not). Parents spend thousands of dollars fighting to be the “educational parent,” i.e., the parent with whom the child lives when they are in school. That’s understandable, the day-to-day school parenting often does feel like the “real” parenting time; however, if you do not have thousands of dollars to spend on fighting, consider saving that money to spend on travel, and come up with a plan that allows you the most time with your child.
The idea of being the educational parent or the school break parent doesn’t make a lot of sense to clients who are trying to leave Hawaii with a small child. They are confused by the fact that the court-ordered parenting plan will probably require the child to come back and forth, no matter how small they are. I remind them that, even if their child is small, they will be responsible for ensuring that they are on a plane (or that they will fly with them) back and forth to Hawaii on a set schedule.
Flying back and forth to Hawaii to drop off a child with the other parent and not having a child for school breaks or holidays is not usually part of a parent’s vision of their new life in their new location! Many of my clients imagine a new life where they will leave Hawaii, start a new life, and have some sort of break from co-parenting. I remind them that while co-parenting will be different, the Court will still order that contact happens.
Extended Parenting Time for Both Parents in Relocation Situations
Remember, if you are allowed to relocate with a very small child, then you may have to deal with the other parent having significantly longer periods of parenting time; for instance, if your child sees their parent every other weekend while you all live in Hawaii, be aware of the fact that those every-other-weekend visits will be expanded to longer periods of time when they will be without you. That should be part of your cost -benefit analysis when you are considering moving with a very small child.
The Family Law System and Relocation Cases
Strategies to Avoid Family Court and Navigate Relocation
Given that fact, how do you avoid a relocation case without just giving up and giving in?
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Planning: Consider where you want to raise your children before you have them. This may sound too simplistic, but the truth is, if the child is born in Hawaii, then a Hawaii judge will have jurisdiction to make custody decisions. If you know you want to raise your child on the continental US (“Mainland”), consider having your child there instead of Hawaii.
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Communication: Talk together as a couple before you make the decision to have kids—where do you want to raise them? In Hawaii? In another state? Another country? That is a discussion that needs to take place so that you both understand how you each see the future. Unfortunately, you cannot make a binding, legal agreement about where to raise your children. So, the agreement you thought you had can be changed at any time. That’s why trust and a strong relationship are so important before you make the decision to have kids together.
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Contingency Planning: No one wants to think about breaking up, but everyone should consider the possibility. If you and your partner were to break up, could you afford to live in Hawaii as a single person? Or, do you think your partner would try to leave Hawaii with the kids? Is one person thinking, “I can always move back home if it doesn’t work out?” or in the alternative, “there is no way my kids will leave Hawaii!” As you’ve now read, those mindsets are not realistic.
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Commitment: If you want to raise your children in Hawaii, and your partner is from another country, or the mainland, have the discussion about your intention to remain in Hawaii. Ask questions about their understanding of what living in Hawaii means, how committed they are to remaining in Hawaii, whether they feel Hawaii is the best place to raise children, and how to make it work for both of you, even if you break up.
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Military Parents: Are you or the other parent in the military? Are you dating someone in the military? If yes to either of those questions, you need to have in the forefront of your mind that military means moving. Are you dating someone who is subject to being relocated every three years? Will your ex agree that your kids can come with you and your new partner to the next duty station? Have the discussion and make agreements. It may very well be that choosing a military partner or spouse is going to create complex problems that make your life and your children’s lives unnecessarily difficult.
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Be Realistic: Take a step back. Hawaii is so romantic and meeting someone on vacation can feel like unending breezes, waves and palm trees. But the Hawaii-life of the day-to-day parent is not the Hawaii-life of the carefree tourist. You both need to be realistic about whether you both intend (and are able) to stay in Hawaii long-term.
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Visualize the Future: Do you see yourself living in Hawaii forever? Or do you have an expectation that you can “go home” to where your friends and family live? How much support do you have in Hawaii if you and your other parent were to break up?
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Cooperation and Support: If you do break up, and one of you is going to have a hard time surviving in Hawaii, consider helping them to live in Hawaii. Don’t break up and tell someone they are on their own—that they need to get a job and a house and pay for childcare—help with rent, help with childcare, ensure that your family continues to be a support to your ex so that they feel less alone and see no option besides leaving Hawaii. If you are the parent that wants to leave—make it easy for your child’s parent to see them in your location. Help with lodging, transportation, etc.
Talking about the Hard Questions Together
