  ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***




                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-14-0000895
                                                               21-OCT-2016
                                                               08:02 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---oOo---
________________________________________________________________

  BRELIE GAIL BALON TUMANENG, Petitioner/Plaintiff-Appellant,

                                     vs.

     BRIXON ANDRES TUMANENG, Respondent/Defendant-Appellee.
________________________________________________________________

                             SCWC-14-0000895

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-14-0000895; FC-D NO. 12-1-7982)

                             OCTOBER 21, 2016

 RECTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                 OPINION OF THE COURT BY McKENNA, J.

                             I.   Introduction

    This case arises out of a custody dispute regarding

physical custody of B.C.B.T., born in 2006 (“Son”). Son’s

mother, Brelie Gail Balon Tumaneng (“Mother”), moved to modify
    ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


custody terms contained in an uncontested decree filed in her

divorce from Son’s father, Brixon Andres Tumaneng (“Father”).

       Mother alleges she should have been allowed to present

evidence of Father’s pre-decree domestic violence at the trial

on her motion.       Intermediate Court of Appeals (“ICA”) precedent

at the time required the Family Court of the First Circuit

(“family court”)1 to find a material change in circumstances

before it could reconsider the original custody order.               A

majority of the ICA ruled that Mother had failed to show how

alleged pre-decree domestic violence related to the material

change in circumstances the family court preliminarily found to

exist.     See Tumaneng v. Tumaneng, No. CAAP-14-0000895, at 2

(App. Oct. 26, 2015) (SDO).         The ICA therefore ruled that the

family court properly excluded evidence of alleged pre-decree

domestic violence on relevance grounds because such evidence was

not related to the material change in circumstances

preliminarily found to exist by the family court, which was

Father’s relocation to Arizona and Mother’s possible move away

from Hawaiʻi with her new husband.          Id.

       In Waldecker v. O’Scanlon, 137 Hawaiʻi 460, 375 P.3d 239

(2016), we recently overruled several ICA cases to the extent

they suggested that a material change in circumstances is


1
    The Honorable Sherri L. Iha presided.


                                        2
  ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


required before a court can consider the best interests of a

child in modifying a custody order.         See id. at 470, 375 P.3d at

249.    We stated, “Rather than [a] two-step analysis, there is a

single inquiry which focuses on the best interests of the

child.”   Id.   We held that the requirement of a material change

in circumstances is inconsistent with HRS § 571-46 (2014).                See

id.    We also noted that “jurisprudential concerns regarding

repetitive motions cannot be addressed in a manner that

conflicts with the requirements of HRS 571–46 that ‘custody

should be awarded . . . according to the best interests of the

child’ and ‘any custody award shall be subject to modification

or change whenever the best interests of the child require or

justify the modification or change.’”         Id. (citing HRS § 571–

46(a)(1), (6)) (emphasis in original).

       In addition, as pointed out by Judge Ginoza in her dissent

from the ICA majority in this case, HRS § 571-46(a)(9) provides

that in child custody proceedings, “a determination by the court

that family violence has been committed by a parent raises a

rebuttable presumption that it is detrimental to the child and

not in the best interest of the child to be placed in . . .

custody . . . with the perpetrator of family violence.”             See

Tumaneng, SDO Dissent at 7 (Ginoza, J., dissenting) (discussing

HRS § 571-46(a)(9)).




                                      3
     ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


       We therefore hold that the family court erred by excluding

evidence of alleged pre-decree domestic violence in making its

custody determination.         Accordingly, we remand this case to the

family court for further proceedings consistent with this

opinion.

                             II.   Background

A.     Factual Background

       Son was born in 2006.        At the time of his birth, both

Mother and Father had not finished high school.              Son lived with

Mother and her parents; Father visited after school.               Mother and

Father married on August 19, 2008, but Father still did not live

with Mother and Son.         Father enlisted in the Air Force in early

2010.      When Father was stationed in Japan later that year,

Mother and Son joined him.          In 2012, Father remained in Japan

and Mother and Son returned to Hawaiʻi from Japan.

       After returning to Hawaiʻi, Mother filed for divorce on

December 13, 2012, and asked that physical custody of Son be

awarded solely to her.         In his answer, Father indicated that he

and Mother had agreed that she would have temporary physical

custody of Son, but that he intended to take physical custody of

Son should he be stationed in the United States.               He stated that

he sought physical custody due to Mother’s alleged marital

infidelity, stating that he would be providing a witness

statement regarding this allegation.

                                         4
     ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


       About three weeks later, on January 3, 2013, Mother signed

Father’s proposed uncontested divorce decree, which was later

approved by the family court and filed on April 4, 2013

(“Decree”).       The Decree provided that physical custody of Son

would be temporarily awarded to Mother until September 2013 then

permanently to Husband after September 2013.              Details regarding

time sharing were reflected in a Proposed Parenting Plan

(“Plan”) also prepared by Father and signed by both parents.

The Plan stated that physical custody of Son should be awarded

to Father after his relocation to the U.S. and that Mother

should have visitation every other weekend from Friday at 2:00

p.m., to Sunday at 6:00 p.m.          Further, the Plan provided that

time with Son during vacations and school breaks would be split

in half between Mother and Father, and that each parent would

have half the day on Son’s birthdays.            The “out-of-state

visitation” space was left blank.

       Two months after the April 4, 2013 Decree, Mother remarried

a servicemember who was scheduled to be re-stationed in Germany,

although it was unclear whether she also intended to leave

Hawaiʻi.

B.     Post-decree Motion to Modify Custody Arrangement

       On August 7, 2013, four months after the Decree, the family

court received Mother’s pro se Motion and Declaration for Post-

Decree Relief (“Motion”).          Mother requested a change to give her

                                         5
  ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


physical custody of Son, alleging that circumstances had changed

(as required by the form) because Father planned to move Son out

of Oahu to Arizona in October 2013.         She asserted that he was a

single father and that she had visitation rights.

     Mother also requested an expedited hearing, but this

request was denied on August 22, 2013.          On October 9, 2013,

Father responded pro se to Mother’s Motion through a letter

dated October 7, 2013.      The letter alleged that Mother had been

aware of the relocation and requested that custody arrangement

in the Decree not be changed.        Father also filed a “Proposed

Parenting Plan (After Relocation),” suggesting changes to

Mother’s visitation schedule.

     On October 15, 2013, Mother filed a pro se ex parte motion

to prevent Father from relocating Son.          Mother noted that the

original Decree did not state that Son would be relocated.               She

asserted that she had agreed to full custody to Husband because

she had been “afraid and confused.”         She indicated she was

trying to regain full custody of Son.         She noted that the Decree

had provided her with regular time sharing, but that Father had

said he would be relocating with Son to Arizona on October 21,

2013.   The family court ordered that Son not be removed from the

state until Mother’s Motion was decided.

     Mother then retained counsel, and filed a declaration on

October 22, 2013, stating in part:

                                      6
  ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


           5.    [Father] for a long time had only part time jobs, but
           in March of 2010 he joined the military. In September of
           2010 he was stationed in Japan. In October of 2010, [Son]
           and I went to Japan to join him.

           6.    While we were in Japan, I was always the one who took
           care   of [Son]. [Father] never bathed him or fed him or
           put him to bed.

           7.    It was very difficult for us in Japan, as [Father]
           would often hit me and I would have to leave the house,
           quickly so I would not be hurt further, and if I had time I
           always tried to take . . . [Son] with me so he would be
           safe, but sometimes I was forced to leave him behind, I was
           so scared.

           8.    I spoke to my mother and she told me to come home,
           since there was no reason for me to stay there and let him
           hit me all the time.

           9.    [Son] and I returned to Hawaii in September of 2012
           and moved back in with my mother.

The affidavit contained additional information regarding pre-

decree circumstances, such as Son’s living arrangements from

birth, and also included an allegation that Father had forced

her to sign his version of the Decree by telling her she would

never see Son again if he told the judge about her alleged

infidelity.

    Mother, with counsel, appeared at a November 6, 2013

hearing before the family court to determine whether a material

change of circumstances existed that would allow modification of

the custody arrangement contained in the Decree.            Father

appeared pro se by telephone.        Mother testified that she had

signed the Decree requiring her to hand over physical custody of

Son because she felt threatened by Father’s answer indicating he

would take Son away from her forever.         Father indicated that


                                      7
     ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


although he had hoped for a new duty station in Hawaiʻi, there

had been no guarantee it would happen.             Upon hearing testimony

from both Mother and Father, the court preliminarily found a

material change in circumstances, i.e., Father’s relocation to

Arizona as well as Mother’s possible move away from Hawaiʻi with

her new husband the following year.            The family court ruled that

the case would proceed to trial because of the material change

in circumstances.

        At the March 3, 2014 trial, both Father and Mother appeared

with counsel.       Before the family court received testimony,

Father’s counsel argued that “certainly no evidence under the

Nadeau[2] decision prior to the last custody order is relevant to

today’s proceeding. . . .          The Court must confine the evidence,

we believe at least, to everything that occurred since April the

4th, 2013 . . . .”        The family court treated the oral motion as

a motion in limine, and granted it, stating, “Basically on this

point there was a prior custody decree and we found that there

was a material change in circumstance since then.               So the

evidence will be limited to what happened since April 4th,

2013.”      Although Mother’s counsel did not refer specifically at

that time to domestic violence allegations, he objected to the




2
    Nadeau v. Nadeau, 10 Haw. App. 111, 861 P.2d 754 (1993).


                                         8
  ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


exclusion of pre-decree evidence based on Father’s mentioning of

pre-decree allegations in his pre-trial memorandum.

    Accordingly, based on the family court’s pre-trial

evidentiary ruling, evidence regarding factual circumstances

existing before April 4, 2013, including evidence regarding

Mother’s claims that Father physically abused her in Japan, was

precluded from the trial.       At trial, the family court received

evidence that included various exhibits and testimony from

Mother, Mother’s mother, and Father regarding the parents’

respective abilities to care for Son.         During closing arguments,

Mother’s counsel urged:

                 [Mr. Fanelli:]    And you know, we weren’t allowed --
           we were precluded from testifying or discussing matters
           that happened prior to April 4th. There is a history
           between these two that would perhaps lend a little more –-
                 Mr. Diehl:        Objection.
                 Mr. Fanelli:      Withdrawn.
                 Mr. Diehl:        And you know, he’s done his
           closing.
                 The Court:        And Mr. Fanelli, basically
           everything you’ve said so far -- I mean, this is not a
           motion to set aside the decree.
                 Mr. Fanelli:      I understand.
                 The Court:        We’re here to determine what’s in
           the best interest of the child post-decree.
                 Mr. Fanelli:      Yes, Your Honor.

    At the conclusion of the trial, the family court granted

sole physical custody of Son to Father.          The family court filed

an order on April 14, 2014 awarding Father sole physical custody

of Son effective May 30, 2014.        The order also addressed time

sharing during Son’s school breaks and vacations, awarded Mother

temporary physical custody if Father was deployed, and stated


                                      9
    ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


that if Mother and Father resided in the same locale in the

future, the parties would be awarded joint physical custody.

      On April 24, 2014, Mother, through new counsel, filed a

motion for reconsideration pursuant to Hawaiʻi Family Court Rules

(“HFCR”) Rule 59, requesting a new trial because the family

court’s preclusion of pre-decree evidence had prevented evidence

of Father’s family violence and abuse of Mother during the

marriage from coming to light, “which should have been

considered by the Court in making a decision regarding physical

custody.”      Without a hearing, the family court denied the motion

for reconsideration on May 20, 2014.

      The family court entered Findings of Fact and Conclusions

of Law on August 6, 2014.         Among other things, the family court

found and concluded that: (1) the Decree filed on April 4, 2013

awarded Father sole physical custody of Son in September 2013,

(2) relocation was contemplated at the time of the divorce, (3)

Mother failed to establish a material change in circumstance

since Father’s relocation back to the United States and

subsequent new assignment was contemplated at the time the

Decree was entered, (4) Mother did not have a history of stable

employment, often went out to bars and left Son with his

grandmother, had been hospitalized for intoxication3 and

3
   Mother’s counsel objected to Father’s counsel’s reference to the incident
in his closing argument, arguing that it occurred before the April 4, 2013
                                                             (continued . . .)

                                       10
     ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


arrested4 for trespassing, (5) Father was an active duty

servicemember stationed near Tucson, Arizona, had always been a

consistent nurturing caregiver, and had demonstrated that he was

better able than mother to provide a safe, loving and nurturing

home for Son, and (6) even if Father’s reassignment outside of

Hawaiʻi had not been contemplated and the court were to find that

Father’s relocation to Arizona was a material change in

circumstances, it was still in Son’s best interest to live with

Father.

C.     Appeal to the ICA

        Mother filed a notice of appeal to the ICA as to both the

April 14, 2014 order on her Motion and the May 20, 2014 order

denying her motion for reconsideration.             She asserted two points

of error, the first of which serves as the basis of her present

Application, that the family court erred when it excluded

evidence prior to April 4, 2013.5


(. . . continued)
Decree. The trial transcript does not reflect when this incident allegedly
occurred, but it was represented in Father’s trial memorandum that it
occurred in January 2013. The family court overruled the objection.
4
     Mother testified that she was “ticketed.”
5
   The second point of error was, “[t]he Family Court committed plain error in
awarding child custody without making any findings regarding the best
interest of the child.” Mother’s reply brief acknowledged, however, that the
family court did address the best interests of the child in conclusions of
law (“COL”) 1 and 4. Mother nevertheless continued to assert error because
the statements were identified as COLs and not findings of fact (“FOF”). The
ICA found Mother’s argument to be without merit because COL 6 stated, “To the
extent that any [FOF] herein may be a [COL], it shall be so construed. To
the extent that a [COL] herein may be a [FOF], it shall be so construed.”
                                                             (continued . . .)

                                        11
   ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


     In its October 26, 2015 Summary Disposition Order (“SDO”),

the ICA majority ruled based on cases subsequently overruled by

Waldecker that “[u]pon a finding of a material change, the

relevant inquiry is whether the material change itself is

sufficient to alter the best interests of the child,” and

therefore Mother “was required to show that the evidence of

domestic violence prior to the divorce decree was related to

[Father’s] pending relocation to Arizona.”           Tumaneng, SDO at 2.

The ICA found no error because Mother did not show such a

relationship.     See id.    The ICA stated that the family court’s

evidentiary ruling was not based on the principles of res

judicata, but rather was “based on the relevance of the evidence

under [HRE] Rule 402.”       Id.

     Judge Ginoza dissented on the basis that the family court

abused its discretion when it denied Mother’s request for a new

trial within her motion for reconsideration, as there existed

good cause for granting Mother’s request.           See Tumaneng, SDO

Dissent at 4 (Ginoza, J., dissenting).           She explained:

            Given the circumstances in this case, where the family
            court did not previously have occasion to consider family
            violence and Mother was unrepresented when the Divorce
            Decree was entered, I believe evidence of family violence
            should have been considered in determining the best

(. . . continued)
Tumaneng, SDO at 3. Further, what was in the best interest of Son was a
“mixed question of law and fact,” and “[t]he family court’s characterization
of its determination as a ‘COL’ rather than a ‘FOF’ does not mean the family
court awarded custody of Son without considering the best interest of the
child. Id. The Application does not challenge this portion of the ICA’s
SDO.


                                      12
     ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


              interests of [Son] and whether to modify custody, even if
              the evidence pertained to incidents prior to the Divorce
              Decree.

Id. at 8.

D.     Application for Writ of Certiorari

       Mother presents three questions to this court:

              [1]. Did the Intermediate Court of Appeals commit grave
              error of fact or law in holding that evidence of domestic
              violence which occurred before an earlier award of custody
              must be related to a material change of circumstances to be
              considered on a motion for change or modification of
              custody pursuant to HRS § 571-46(a)(6)?

              [2]. Did the Intermediate Court of Appeals commit grave
              error of fact or law in holding that evidence of domestic
              violence which occurred before an earlier award of custody
              must be related to a material change of circumstances to be
              considered on a motion for change or modification of
              custody pursuant to HRS § 571-46(a)(6), where the issue of
              custody was not previously fully litigated and adjudicated
              by the court?

              [3]. Did the Intermediate Court of Appeals commit grave
              error of fact or law in holding that evidence of domestic
              violence which occurred before an earlier award of custody
              must be related to a material change of circumstances to be
              considered on a motion for change or modification of
              custody pursuant to HRS § 571-46(a)(6), where the prior
              order awarding custody was based upon an uncontested
              stipulation allegedly obtained by fraud and/or duress or
              from a moving party who was previously unrepresented by
              counsel?

All three questions assert that the family court erred in

excluding evidence of domestic violence that had allegedly

occurred before April 4, 2013.           We address this issue in Section

IV below.

                           III.   Standard of Review

           “A trial court’s determination that evidence is ‘relevant’

within the meaning of HRE Rule 401 (1993) is reviewed under the

right/wrong standard of review.”             State v. St. Clair, 101 Hawaiʻi

                                        13
     ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


280, 286, 67 P.3d 779, 785 (2003).            HRE Rule 401 defines

relevant evidence as “evidence having any tendency to make the

existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.”            HRE Rule 402 provides that

“[a]ll relevant evidence is admissible, except as otherwise

provided by the Constitutions of the United States and the State

of Hawaiʻi, by statute, by these rules, or by other rules adopted

by the supreme court.         Evidence which is not relevant is not

admissible.”

                                IV.    Discussion

A.     Child Custody Determinations Must Be Based on the Best
       Interests of the Child, and a Material Change in
       Circumstances is not Required to Modify a Child Custody
       Order

       We note at the outset that the family court applied ICA

cases binding on it at the time, which required a threshold

showing of a “material change in circumstances” before a change

in a child custody order could be considered.              In Waldecker, 137

Hawaiʻi 460, 375 P.3d 239, we overruled the cases cited by the

ICA in its Summary Disposition Order to the extent they

suggested that a material change in circumstances is required

before a court can consider the best interests of a child in

modifying a custody order.            See id. at 470, 375 P.3d at 249.




                                         14
  ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


We addressed HRS § 571-46, which provides as follows with

respect to the family court’s modification of a custody order:

           Criteria and procedure in awarding custody and visitation;
           best interest of the child. (a) In actions for divorce, .
           . . or any other proceeding where there is at issue a
           dispute as to the custody of a minor child, the court,
           during the pendency of the action . . . or any time during
           the minority of the child, may make an order for the
           custody of the minor child as may seem necessary or proper.
           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 .
           . . . ;
                 (6) Any custody award shall be subject to
           modification or change whenever the best interests of the
           child require or justify the modification or change and,
           wherever practicable, the same person who made the original
           order shall hear the motion or petition for modification of
           the prior award. . . .

    In Waldecker, construing HRS § 571-46, we stated, “Rather

than [a] two-step analysis, there is a single inquiry which

focuses on the best interests of the child. . . .            [T]he

question is ‘whether or not there has been such a change of

circumstances that the modification will be for the [best

interest] of the child.’”       Id. (citation omitted) (brackets in

original).    We held that the requirement of a material change in

circumstances is inconsistent with the statute.           See id.    We

also noted that “jurisprudential concerns regarding repetitive

motions cannot be addressed in a manner that conflicts with the

requirements of HRS 571–46 that ‘custody should be awarded . . .

according to the best interests of the child’ and ‘any custody

award shall be subject to modification or change whenever the

best interests of the child require or justify the modification


                                     15
     ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


or change.’”       Id. (citing HRS § 571–46(a)(1), (6)) (emphasis in

original).

       Pursuant to HRS § 571-46, as construed in Waldecker, the

family court was required to consider all evidence relevant to

the issue of whether modification of the Decree would be in the

best interests of the child.          In this case, pre-decree evidence

was clearly relevant to this determination.              Therefore, the

family court erred by excluding pre-decree evidence to ascertain

Son’s best interests.6         Although Mother’s application is based

solely on the exclusion of pre-decree domestic violence

evidence, on remand, pursuant to HRS § 571-46 and Waldecker,

other pre-decree evidence may be relevant to Son’s best

interests.

B.     In Determining the Best Interests of the Child, the Family
       Court Must Consider Evidence of Domestic Violence and Apply
       the Rebuttable Presumption of HRS § 571-46(9)

       This case also presents the specific question of whether

the family court erred by excluding all pre-decree evidence of

domestic violence.        In this regard, HRS § 571-46(9) and (10)

provided at the times relevant to this case as it does now:

                    (9) In every proceeding where there is at issue a
              dispute as to the custody of a child, a determination by
              the court that family violence has been committed by a
              parent raises a rebuttable presumption that it is
              detrimental to the child and not in the best interest of

6
   The family court compounded the error by considering pre-decree evidence
adverse to Mother while excluding evidence of Father’s domestic violence, as
well as other relevant circumstances of Son’s upbringing.



                                        16
  ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


           the child to be placed in sole custody, joint legal
           custody, or joint physical custody with the perpetrator of
           family violence. In addition to other factors that a court
           shall consider in a proceeding in which the custody of a
           child or visitation by a parent is at issue, and in which
           the court has made a finding of family violence by a
           parent:
                    (A) The court shall consider as the primary
           factor the safety and well-being of the child and of the
           parent who is the victim of family violence;
                    (B) The court shall consider the perpetrator’s
           history of causing physical harm, bodily injury, or assault
           or causing reasonable fear of physical harm, bodily injury,
           or assault to another person; and
                    (C) If a parent is absent or relocates because of
           an act of family violence by the other parent, the absence
           or relocation shall not be a factor that weighs against the
           parent in determining custody or visitation;
                 (10) A court may award visitation to a parent who
           has committed family violence only if the court finds that
           adequate provision can be made for the physical safety and
           psychological well-being of the child and for the safety of
           the parent who is a victim of family violence . . . .

    We also note that HRS § 571-2 (Supp. 2014) defines “family

violence” as:

           the occurrence of one or more of the following acts by a
           family or household member, but does not include acts of
           self-defense:

           (1) Attempting to cause or causing physical harm to
           another family or household member;
           (2) Placing a family or household member in fear of
           physical harm; or
           (3) Causing a family or household member to engage
           involuntarily in sexual activity by force, threat of force,
           or duress.

We note that this definition of “family violence” is not limited

to physical acts of domestic violence, which are alleged by

Mother in this case, but also includes non-physical acts, such

as threats.

    HRS § 571-46(9) requires that the family court address

whether “family violence has been committed by a parent” in

“every proceeding” at which a court considers a “dispute as to

                                     17
  ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


the custody of a child.”       The statute imposes a “rebuttable

presumption that it is detrimental to the child and not in the

best interest of the child to be placed in . . . custody . . .

with the perpetrator of family violence.”          Id.   Indeed, the

legislature mandates the court to “consider the perpetrator’s

history of causing physical harm, bodily injury, or assault or

causing reasonable fear of physical harm, bodily injury, or

assault to another person.”       HRS § 571-46(a)(9)(A).

    As we noted in Doe v. Doe, 98 Hawaiʻi 144, 44 P.3d 1085

(2002):

                 A determination of family violence bears directly
           upon the best interests of the child, as indicated in HRS §
           571–46(9), which provides that, when a determination of
           family violence is made by the family court, a rebuttable
           presumption is created that custody should not be placed
           with the perpetrator[.]
           . . . .
                 Father was allowed to testify and present all of his
           witnesses to the court. Mother testified, but the court did
           not hear from any of her other witnesses, in particular,
           those who would have testified, according to their
           affidavits, about Father’s alleged abuse of Mother and its
           related effect on Child. Evidence supporting such
           allegations was pertinent to whether Father should have
           sole legal and physical custody of Child.

Id. at 156, 44 P.3d at 1097 (citations omitted).

    Doe highlights the importance of considering all testimony

relevant to allegations of domestic violence in custody

determinations.     In this case, the family court did not allow

any evidence of domestic violence in its custody determination.

    The custody arrangement set out in the Decree was in an

uncontested divorce filing, with no hearing before the family


                                     18
  ***    FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


court.    Although the family court had approved the Son’s custody

arrangement in the Decree, in her post-decree Motion, Mother

alleged coercion and duress regarding the original “agreement.”

In addition, a clear dispute between Mother and Father over

Son’s custody arose when Mother filed her Motion.             The March 3,

2014 trial was the first proceeding at which the family court,

under HRS § 571-46(9), had occasion to receive evidence and

consider the issue of whether family violence was committed by

Father, and what custody arrangement was actually in Son’s best

interests.

    As noted in Doe, the statute sets out clear guidelines

regarding custody decisions when a determination of family

violence is made.      The legislature’s intent to require family

courts to address issues of family violence in determining child

custody and visitation decisions is clear on the face of the

statute.    In enacting HRS § § 571-46(9) and (10) in 1996, the

legislature also stated:

            Because current laws relative to child custody and
            visitation are based on an assumption that . . . divorcing
            parents are in relatively equal positions of power and that
            such parents will act in the children’s best interest,
            these laws often work against the protection of the
            children and the abused spouse in families with a history
            of family violence. . . .

1996 Haw. Sess. Laws Act 198, § 1 at 450.           Therefore, in order

to determine Son’s actual best interests as mandated by HRS §

571-46, the family court was required to address the specific



                                      19
  ***   FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER   ***


and direct allegations of domestic violence in this case before

making its custody determination.

                              V.   Conclusion

    For these reasons, we vacate the family court’s April 14,

2014 order on Mother’s Motion, its May 20, 2014 order denying

Mother’s motion for reconsideration, and its August 6, 2014

Findings of Fact and Conclusions of Law.          We also vacate the

ICA’s October 26, 2015 Summary Disposition Order and November

23, 2015 Judgment on Appeal.       We remand this case to the family

court for further proceedings consistent with this opinion.

Charles H. Brower                    /s/ Mark E. Recktenwald
for petitioner
                                     /s/ Paula A. Nakayama
Richard J. Diehl
for respondent                       /s/ Sabrina S. McKenna

                                     /s/ Richard W. Pollack

                                     /s/ Michael D. Wilson




                                     20
