Background
P.C. (Mother) and G.S. (Father) married in February 2022 and have two minor children together. Mother filed for divorce in September 2023 in the Family Court of the Third Circuit. A custody evaluator — a licensed psychologist on the Hawaii Judiciary’s qualified evaluator list since 2016 — was appointed and submitted a report in June 2024 recommending sole physical custody to Father, with generous daytime visitation for Mother until she secured stable housing.
Trial was scheduled for December 13, 2024. The pretrial order required parties to exchange witness lists, exhibit lists, and exhibits by November 29, 2024. Mother, who had retained counsel by October 2024, failed to serve any witness list, exhibit list, or proposed exhibits on Father by that deadline. On the first day of trial, after the custody evaluator had already testified, Mother’s counsel moved for a continuance to cure these deficiencies. The family court denied the motion and precluded Mother from offering any trial exhibits beyond financial documents and previously filed statements, and from calling witnesses other than herself and those on Father’s list.
At a prior TRO proceeding, the family court had found that Father committed domestic violence against Mother on one specific allegation — that he had sex with her while she was sleeping — but found no merit to allegations of abuse toward the children and declined to include the children on the protective order. The family court ultimately awarded Father sole legal and primary physical custody, and ordered Mother to pay child support. Mother, self-represented on appeal, challenged the custody award, the evidentiary rulings, the denial of the continuance, and the child support and property division orders.
The Court’s Holding
The Hawaii Intermediate Court of Appeals affirmed the February 10, 2025 Divorce Decree in all respects. The court held that the family court did not err in admitting the custody evaluator’s report and testimony, as the evaluator was a licensed psychologist on the judiciary’s qualified list and was extensively cross-examined — satisfying the statutory requirements under HRS § 571-46(a)(4). Mother’s challenges to the evaluator’s credibility and the weight given her testimony were unreviewable on appeal, as credibility determinations are exclusively within the province of the trier of fact.
The appellate court found no abuse of discretion in denying the continuance. Unlike cases where a party was without counsel during critical pretrial periods, Mother had retained counsel nearly two months before the extended deadlines expired and provided no explanation for noncompliance, identified no specific witnesses or exhibits she intended to offer, and made her motion only after the first witness had already testified. Similarly, precluding Mother from offering undisclosed witnesses and exhibits was within the family court’s discretion under Hawaii Family Court Rule 94.3, which is designed to prevent trial by ambush.
On the custody merits, the court held that the family court properly applied HRS § 571-46(a)(9), which creates a rebuttable presumption against awarding custody to a perpetrator of family violence. Because substantial evidence — including the custody evaluator’s report and testimony addressing the children’s safety, emotional needs, sibling relationships, and Mother’s mental health and parenting history — supported awarding Father sole custody, the domestic-violence presumption was effectively rebutted under Rezentes v. Rezentes, 88 Haw. 200 (App. 1998). The court declined to disturb the child support order or property division, finding no predicate error requiring reconsideration.
Key Takeaways
- A domestic-violence finding under HRS § 571-46(a)(9) raises a rebuttable presumption against awarding custody to the perpetrator, but the presumption can be overcome by substantial evidence — including a custody evaluator’s report — that the child’s best interests favor the other parent.
- A mid-trial motion for a continuance to cure a party’s own failure to comply with pretrial exchange deadlines will generally be denied where the party was represented by counsel before those deadlines passed and offers no explanation for the noncompliance.
- Appellate courts will not reweigh the credibility of witnesses, including custody evaluators; challenges to the weight given expert testimony are for the trial court alone.
- A self-represented appellant’s noncompliant brief will be construed liberally to identify cognizable arguments, but attachments that are not part of the appellate record will be disregarded.
Why It Matters
This decision illustrates how Hawaii courts balance domestic violence findings against the full range of best-interests factors in contested custody cases. Even where a court has found that one parent committed family violence, the statutory presumption under HRS § 571-46(a)(9) is not insurmountable — a thorough, evidence-based custody evaluation addressing the child’s safety, emotional health, sibling bonds, and each parent’s mental health and parenting history can be sufficient to rebut it and support an award of sole custody to the parent who was the perpetrator.
The case also serves as a practical reminder of the consequences of pretrial noncompliance in family court. Counsel who miss witness and exhibit exchange deadlines — even in cases involving self-represented clients during part of the litigation — may find themselves unable to present key evidence at trial, with appellate courts unwilling to second-guess the trial court’s refusal to grant a last-minute continuance.