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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. 	




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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 . . .)


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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.	




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