Hawaii Grandparents' Rights

Supreme Court Finds Statute Unconstitutional

grandparents in Hawaii have no visitation rights
Many Hawaiian grandparents play important roles in the lives of their grandchildren. Photo © Rothenborg Kyle | Perspectives | Getty Images

Hawaii has a statute allowing grandparents to sue for visitation with grandchildren. That statute has been rendered worthless, however, by a 2007 court case declaring that the law as written is unconstitutional. Thus Hawaii has no workable grandparent visitation law. 

What the Statutes Say

The law in Hawaii is exceedingly simple. It states that grandparents may petition for visitation as long as the child's home state is Hawaii and if "reasonable visitation rights are in the best interests of the child." The additional two sentences contained in the statute are merely procedural in nature.

What Happened in Court

In Doe v. Doe a mother sought to block the suit of the paternal grandparents for visitation. The mother contended that Troxel v. Granville, the 2000 decision by the U.S. Supreme Court, made Hawaii's grandparent visitation law unconstitutional. The family court which heard the case agreed with the mother, triggering an appeal to the the Hawaii Supreme Court.

By the time the case came to the Supreme Court, custody of the child had been transferred to the father, and the case was moot, meaning that it had no practical application. Still, the Hawaii Supreme Court agreed to hear the case, referring to the "the shadow cast over this jurisdiction's grandparent visitation statute" by the Troxel decision. In light of the possibility that the issue would reappear in court, the court decided to make a ruling on the case. 

The court found that the state’s lower courts must adopt a test of whether upholding the parent’s wishes could cause “harm” to the child -- the so-called harm standard -- rather than the less stringent requirement of considering the best interests of the child.

The court found that it could not justify reading in a “harm to the child” standard, saying that would be "judicial legislation." Thus the law needed to be rewritten in order to be constitutional.

Attempts to Pass New Laws

In 2013 grandparent visitation bills were introduced into both houses of the Hawaiian legislature, but no new legislation was passed.

Instead, both House Bill 1244 and Senate Bill 629 were carried over to the 2014 legislative session but died again without being passed.

Hawaii's Special Status

Hawaiian law gives some special protection to its indigenous people and culture, according to Article XII, §7 of the Hawaii constitution. This special consideration is also mentioned in the very first Hawaiian statute, which states that English and American common law form the basis for Hawaiian law, except when "fixed by Hawaiian judicial precedent, or established by Hawaiian usage." (§1-1) A case note added to the statutes about grandparent visitation, however, affirms that native Hawaiian grandparents have no special or additional rights in this area.

See Hawaii statutes.

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