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                                                    Electronically Filed
                                                    Intermediate Court of Appeals
                                                    CAAP-XX-XXXXXXX
                                                    31-JUL-2020
                                                    07:53 AM

                           NO. CAAP-XX-XXXXXXX

                 IN THE INTERMEDIATE COURT OF APPEALS

                         OF THE STATE OF HAWAI#I

                        NB, Plaintiff-Appellant,
                                   v.
                         GT, Defendant-Appellee


         APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
                       (FC-D NO. 12-01-056K)


                           MEMORANDUM OPINION
         (By:    Ginoza, Chief Judge, Chan and Hiraoka, JJ.)

            Plaintiff-Appellant NB (Mother) appeals from the "Order
re Plaintiff's Motion and Declaration for Post-Decree Relief
filed on 06/21/2018 and Defendant's Motion for Post-Decree Relief
to Modify Physical Custody and Visitation Orders filed on
04/23/2019" (2019 Post-Decree Order) entered on August 6, 2019 in
favor of Defendant-Appellee GT (Father) by the Family Court of
the Third Circuit (Family Court).1         In the 2019 Post-Decree
Order, the Family Court, inter alia, denied Mother's post-decree
motion to relocate Mother and Father's three minor children,
S.K.T., K.K.T, and Z.K.T., to the state of Washington and granted
Father's motion for joint physical custody of the children.
          On appeal, Mother challenges the Family Court's 2019
Post-Decree Order, and the findings of fact (FOFs) and
conclusions of law (COLs) made in relation to the order, "to the



     1
         The Honorable Wendy M. DeWeese presided.
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extent they are germane to this appeal".2 Mother asserts that
the Family Court abused its discretion in denying her request to
relocate with her minor children and granting Father's request
for joint physical custody, arguing that those rulings: (1) were
not in the best interest of the children as contemplated under
Hawaii Revised Statutes (HRS) § 571-46 (2018); (2) were contrary
to Hawaii's case law; (3) failed to consider the history of
domestic violence by Father, and (4) improperly relied on the
recommendation and testimony of the appointed guardian ad litem
(GAL) because it was based on an incorrect assumption.
            For the reasons discussed below, we affirm.
                            I. Background
          On March 16, 2012, Mother filed a complaint for divorce
against Father. On May 29, 2012, the Family Court entered a
Divorce Decree in favor of Mother which, inter alia, awarded
joint legal custody of the three minor children to Mother and
Father, and sole physical custody of the children to Mother, with
a detailed visitation/time sharing schedule with Father. On
January 26, 2016, Father filed a post-decree motion for relief
seeking to modify his visitation schedule. On August 22, 2016,
the Family Court entered a post-decree order (2016 Post-Decree
Order), which, inter alia, denied Father's motion and adjusted
the visitation schedule.3
          In the 2016 Post-Decree Order, the Family Court made a
number of FOFs in relation to its denial of Father's request to
adjust the visitation schedule:
            1.    The Court has concerns for that [sic] the minor
                  children being exposed to violent video games and guns
                  that are inappropriate for their age while in
                  [Father's] care.
            2.    The children are exhausted when returning from


      2
         The Family Court entered its "Findings of Fact, Conclusions of Law re
Order re Plaintiff's Motion and Declaration for Post-Decree Relief Filed on
06/21/2018 and Defendant's Motion for Post-Decree Relief to Modify Physical
Custody and Visitation Orders Filed on 04/23/2019" on September 20, 2019.

      3
         The Honorable Aley K. Auna, Jr. presided over the Divorce Decree and
2016 Post-Decree Order.

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                [Father's] house. This was recognized by the teachers
                and counselors.
          3.    The Court is concerned with the children's access to
                social media accounts which may place the children in
                danger, but [Mother] did not meet her burden in
                proving that the minor children's access to the
                Internet has placed them in danger.
          4.    The parties' minor son was injured while in [Father's]
                care and did not notify [Mother] for two days, which
                is not in the best interests of the child, nor does it
                support [Father's] motion for 50-50 custody.
          5.    Both parties appear to be loving, caring parents.
          6.    The Court must decide what is in the children's best
                interests.
          7.    There was domestic violence in the past.
          8.    The parties have difficulties getting along when it
                comes to parenting, and this goes against shared
                custody being in the best interests of the children.
          9.    [Father] has not proven by a preponderance of the
                evidence that there has been a material change in
                circumstances.
          10.   It is in the best interests of the minor children for
                [Mother] to have sole physical custody and for
                [Mother] and [Father] to have joint legal custody of
                the children, as provided for in Stipulation Regarding
                Legal and Physical Custody, Approved and So Ordered by
                the Honorable Judge Aley K. Akuna, Jr., and filed on
                April 9, 2013.
          11.   It is in the best interests of the minor children for
                the visitation order currently in place to be
                modified, as set forth in the Order below.

(Emphasis added).
          On June 21, 2018, Mother filed a motion for post-decree
relief seeking, inter alia, sole legal custody and permission to
relocate the three children to the state of Washington. On
February 7, 2019, the Family Court entered an order appointing a
GAL. On April 23, 2019, Father filed a competing motion for
post-decree relief, seeking, inter alia, joint physical custody
of the children, or in the alternative, if Mother relocates to
Washington, an order granting sole physical custody of the
children to Father with reasonable visitation with Mother.
          Evidentiary hearings on the motions were held on June
28, 2019, and July 11, 2019. On August 6, 2019, the Family Court
entered the 2019 Post-Decree Order which, inter alia, denied
Mother's motion to relocate the children and granted Father's
motion for joint physical custody, giving rise to this appeal.
On September 20, 2019, the Family Court entered its FOFs and COLs


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in relation to the 2019 Post-Decree Order.
          II. The Family Court properly considered the
        HRS § 571-46(b) factors in its Post-Decree Order

          Mother asserts that the Family Court abused its
discretion in denying her request to relocate the children to
Washington and in awarding joint physical custody of the children
to Father because the HRS § 571-46(b) factors and the best
interests of the children weighed in favor of relocation and/or
at the very least Mother maintaining sole physical custody over
the children. We conclude that the Family Court did not abuse
its discretion and appropriately considered the best interests of
the children under the HRS § 571-46(b) factors in its 2019 Post-
Decree Order.
          "It is well settled that in child custody cases the
paramount concern is the best interests of the child." W.N. v.
S.M., 143 Hawai#i 128, 135, 424 P.3d 483, 490 (2018) (citation
omitted). Likewise, in cases where one parent wishes to relocate
with the children over the objection of the other parent, courts
have consistently adhered to the best interests of the child
standard as the governing consideration. See HRS § 571-46(a)(1);
see also Fisher v. Fisher, 111 Hawai#i 41, 50, 137 P.3d 355, 364
(2006); Waldecker v. O'Scanlon, 137 Hawai#i 460, 471, 375 P.3d
239, 250 (2016). HRS § 571-46(b) provides a non-exhaustive list
of factors for the Family Court to consider in determining the
best interest of the children.4 "The trial court possesses broad


     4
         HRS § 571-46(b) provides:
                  (b)   In determining what constitutes the best
            interest of the child under this section, the court
            shall consider, but not be limited to, the following:
                  (1)   Any history of sexual or physical abuse of
                        a child by a parent;
                  (2)   Any history of neglect or emotional abuse
                        of a child by a parent;
                  (3)   The overall quality of the parent-child
                        relationship;
                  (4)   The history of caregiving or parenting by
                        each parent prior and subsequent to a
                        marital or other type of separation;
                  (5)   Each parent's cooperation in developing

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discretion in making custody decisions and in its determination
of what is in the best interests of the child." A.A. v. B.B.,
139 Hawai#i 102, 106, 384 P.3d 878, 882 (2016) (citation
omitted).


                      and implementing a plan to meet the
                      child's ongoing needs, interests, and
                      schedule; provided that this factor shall
                      not be considered in any case where the
                      court has determined that family violence
                      has been committed by a parent;
               (6)    The physical health needs of the child;
               (7)    The emotional needs of the child;
               (8)    The safety needs of the child;
               (9)    The educational needs of the child;
               (10)   The child's need for relationships with
                      siblings;
               (11)   Each parent's actions demonstrating that
                      they allow the child to maintain family
                      connections through family events and
                      activities; provided that this factor
                      shall not be considered in any case where
                      the court has determined that family
                      violence has been committed by a parent;
               (12)   Each parent's actions demonstrating that
                      they separate the child's needs from the
                      parent's needs;
               (13)   Any evidence of past or current drug or
                      alcohol abuse by a parent;
               (14)   The mental health of each parent;
               (15)   The areas and levels of conflict present
                      within the family; and
               (16)   A parent's prior wilful misuse of the
                      protection from abuse process under
                      chapter 586 to gain a tactical advantage
                      in any proceeding involving the custody
                      determination of a minor. Such wilful
                      misuse may be considered only if it is
                      established by clear and convincing
                      evidence, and if it is further found by
                      clear and convincing evidence that in the
                      particular family circumstance the wilful
                      misuse tends to show that, in the future,
                      the parent who engaged in the wilful
                      misuse will not be able to cooperate
                      successfully with the other parent in
                      their shared responsibilities for the
                      child. The court shall articulate findings
                      of fact whenever relying upon this factor
                      as part of its determination of the best
                      interests of the child. For the purposes
                      of this section, when taken alone, the
                      voluntary dismissal of a petition for
                      protection from abuse shall not be treated
                      as prima facie evidence that a wilful
                      misuse of the protection from abuse
                      process has occurred.


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           On appeal, Mother reiterates many of the arguments she
made to the Family Court in the underlying proceedings. Mother
asserts that she has maintained sole physical custody of the
children and has performed all of the day-to-day care of the
children since the Divorce Decree was entered in 2012. Mother
points to the alleged shortcomings of Father's care of the
children, including a lack of structure and enforcement of rules,
and occasions where the children were injured while in his care.
Mother also notes that she has never interrupted Father's
visitation with the children, despite the alleged domestic
violence that Father has subjected her to and his failure to pay
child support.
           Mother also asserts the record establishes that
relocation to Washington with Mother is in the best interests of
the children. Mother notes that the cost of living in
Washington, including housing costs, are significantly lower than
in Hawai#i. Mother further notes that based on her research, the
area of Washington where she intends to move offers the children
access to better educational opportunities and medical care,
which is especially important in light of an allergy condition
suffered by Z.K.T. Mother also notes that she has received
informal job offers at two different companies in Washington.
Mother also asserts that the children will continue to receive
the support of their extended family, as her current partner is
moving to Washington, and her parents intend to join her as soon
as they are able to sell their house in Hawai#i.
           However, the Family Court considered all of these
arguments in its evaluation of the HRS § 571-46(b) factors, and
within its discretion, ultimately concluded that it was in the
children's best interests to remain in the state of Hawai#i, and
for Father to be granted joint physical custody of the children.
           In considering the history of care giving or parenting
by each parent, the Family Court concluded that while Mother
became the primary custodial parent during the school week
pursuant to the 2016 Post-Decree Order, Father has maintained

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substantial time with the children during weekends, holidays, and
vacations. The Family Court further found that Father is active
in the children's school and sports activities, and that "while
the parents do not share exactly equal time with their children,
[Father] has a substantial and meaningful role in the children's
lives."
          The Family Court further concluded that each parent has
made fairly equal efforts to ensure that their children's needs
are met. While Mother has been responsible for a majority of the
weekday care of the children by virtue of the 2016 Post-Decree
Order, the Family Court found that Father "has maximized the
opportunities he does have during the week and weekends to be
with his children[,]" and there is no evidence Father is
unwilling or unable to care for the children's medical needs.
The testimony presented to the Family Court support the court's
conclusion.
          In regards to Father's parenting style, the Family
Court noted that while some of the children have been injured
while in both parents' care, both parents handled the situations
appropriately and have addressed the accidental injuries. The
Family Court noted that both parents had strengths and
weaknesses, and the children ultimately benefitted from having a
relationship with both Father and Mother.
          In regards to the areas and levels of conflict between
the parties, the Family Court indicated that the level of
conflict has been relatively low, and that both Mother and Father
have been able to cooperate and co-parent with each other. As
discussed in more detail infra, the record is devoid of any
finding by the Family Court of family violence on the part of
Father. The Family Court also noted that while it appears that
Father owes Mother a significant amount in child support
arrearages, the exact amount appears to legitimately be in
dispute based on prior court orders and agreements by the
parties.


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          The Family Court also made numerous FOFs and COLs
explaining why it did not believe it was in the children's best
interest to be relocated to Washington. The Family Court found
that there is limited information about the proposed relocation,
including what schools the children would attend, their long-term
housing arrangements, a clear description of the local community,
Mother's employment, and whether Mother's partner would
contribute financially to the household. The Family Court found
that although Mother has proposed a visitation plan for Father,
there is no plan for how to distribute the costs for the
children's travel expenses.
          The Family Court concluded that the educational needs
of the children were adequately met in Hawai#i, and that there
was limited information about the specific educational
opportunities in Washington. The Family Court concluded that
although Z.K.T. has suffered from allergies that have not yet
been definitively diagnosed, the issue appears to have been
resolved, and it does not appear that Z.K.T. requires any
extraordinary care or treatment. The Family Court also noted the
significant disruption that would occur in the children's
relationship with their extended family if they were permitted to
relocate, considering that only Mother's brother was currently in
Washington and although Mother testified her parents intended to
move, there was limited testimony about the details of such move.
The Family Court also expressed concern that Mother's intention
to move was motivated more by her desire to follow her partner to
Washington as opposed to improve her children's lives.
          At the July 11, 2019 hearing, the Family Court stated
that it was granting Father's request for joint physical custody
based on the same findings it had made in relation to its denial
of Mother's relocation request. The Family Court further noted
that its custody determination was also based on considerations
by the GAL, who expressed that the children have requested for
equal time with Mother and Father, and appear to be happy with
both parents.

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          In sum, the Family Court considered Mother's arguments
in its evaluation of the HRS § 571-46(b) factors, and within its
discretion concluded that it was in the children's best interests
to remain in Hawai#i and for Father to be awarded joint physical
custody of the children. Although Mother challenges the Family
Court's FOFs and COLs "to the extent they are germane to this
appeal", she does not challenge any specific finding or
conclusion, nor does she provide any basis as to why any finding
was clearly erroneous. Accordingly, the Family Court did not
abuse its discretion in its 2019 Post-Decree Order.
            III. The Family Court's Post-Decree Order
               was not contrary to Hawaii's case law

          Mother contends that the Family Court misapplied
Hawaii's case law in its 2019 Post-Decree Order. Specifically,
Mother asserts that the court erroneously applied Gillespie v.
Gillespie, 40 Haw. 315 (Haw. Terr. 1953), Maeda v. Maeda, 8 Haw.
App. 139, 794 P.2d 268 (1990), Tetreault v. Tetreault, 99 Hawai#i
352, 55 P.3d 845 (App. 2002) and Fisher, 111 Hawai#i 41, 137 P.3d
355 in denying Mother's request to relocate the children. We
disagree and conclude that the Family Court properly considered
and applied Hawai#i case law in its 2019 Post-Decree Order.
          Mother asserts that the instant case is distinguishable
from Gillespie and Maeda, where the parents' requests to relocate
their children were denied because the relocating parent did not
provide evidence that the relocation destination was well-suited
for their children. See Gillespie, 40 Haw. at 320-23; Maeda, 8
Haw. App. at 143, 794 P.2d at 270. Mother instead contends that
this case is more akin to Fisher and Tetreault, where the record
supported the court's determination that relocation was in the
best interests of the children. See Fisher, 111 Hawai#i at 50-
51, 137 P.3d at 364-65; Tetreault, 99 Hawai#i at 358, 55 P.3d at
851. However, as discussed above, the Family Court considered
the evidence and ultimately concluded that there was not enough
information about the relocation to determine whether the move
would be beneficial to the children. The record supports this
conclusion.

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           While Mother testified that she received two informal
job offers in Washington, her testimony on cross-examination
indicated that the terms of her employment were speculative.
Mother also testified that her partner did not currently have a
job in Washington. Mother also testified that she had not yet
secured any long-term housing, and intended to move in with her
brother until she was able to find a suitable home for the
children. However, as noted by the Family Court, there was no
evidence regarding the details about her brother and his
residence.
           Further, Mother testified that the schools in
Washington were ranked significantly higher than the schools in
Hawai#i based on her research on "Google", but there was no
testimony as to any specific school in which Mother intended to
enroll the children, or how the new school would benefit the
children. The Family Court noted that the absence of such
evidence was significant because it is undisputed that S.K.T. is
thriving in her current school, and although K.K.T. and Z.K.T.
have needed additional educational assistance, there was evidence
presented that established that the children were receiving such
assistance from their teachers and counselors in Hawai#i.
           In sum, our review of the record confirms that the
Family Court appropriately considered Hawai#i case law in denying
Mother's request to relocate her children to Washington.
            IV. The Family Court did not err in finding
       that there was no history of domestic abuse by Father
          Mother asserts that the Family Court erred in its Post-
Decree Order because it found no history of abuse on the part of
Father, and erroneously concluded that Father had rebutted the
presumption in HRS § 571-46(a)(9) against an award of joint
physical custody to a parent where there is a determination by
the court that family violence had been committed by that parent.
We disagree because the record does not contain a finding that
Father committed family violence, and thus there was no
rebuttable presumption against Father's joint physical custody of
the children.

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          One of the factors in awarding child custody under HRS
§ 571-46(b) is "[a]ny history of sexual or physical abuse of a
child by a parent". As stated in HRS § 571-46(a)(9), if the
family court makes any determination that family violence had
been committed by a parent, a rebuttable presumption is raised
against that parent's custody over the children in every
proceeding determining custody:
          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 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;

(Emphasis added).
          HRS § 571-2 (2018) defines "family violence" as
follows:
          "Family violence" means 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.

(Emphases added).
          Here, in the 2019 Post-Decree Order, the Family Court
concluded that the factor under HRS § 571-46(b)(1), "[a]ny
history of sexual or physical abuse of a child by a parent", was

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not applicable, presumably because there was no prior history of
physical or sexual abuse by either parent. However, the Family
Court further concluded:
          With respect to the finding of the Court contained in
          its [2016 Post-Decree Order], that "there was domestic
          violence in the past," the Court finds and concludes
          [Father] has rebutted the presumption in [HRS §] 571-
          46(a)(9) against an award of joint legal and physical
          custody to [Father].

          Mother asserts that this conclusion was erroneous
because the Family Court had previously found that Father had
committed domestic violence in the 2016 Post-Decree Order.
Accordingly, Mother asserts that the Family Court failed to
undertake any of the analysis required by HRS § 571-46(a)(9) &
(10) before concluding that Father had rebutted the statutory
presumption against his joint custody of the children. However,
the 2016 Post-Decree Order does not reflect a finding of family
violence on the part of Father.
          As stated in its FOFs in the 2016 Post-Decree Order,
the Family Court found that "[t]here was domestic violence in the
past." However, the Family Court's FOFs did not indicate who had
committed such conduct, or what such conduct entailed. Further,
this finding does not appear to implicate a finding of family
violence on the part of Father. As Mother asserts in her opening
brief, the Family Court's finding of domestic violence appears to
pertain to the following FOFs in the 2016 Post-Decree Order:
          1.    The Court has concerns for that [sic] the minor
                children being exposed to violent video games
                and guns that are inappropriate for their age
                while in [Father's] care.
          2.    The children are exhausted when returning from
                [Father's] house. This was recognized by the
                teachers and counselors.
          3.    The Court is concerned with the children's
                access to social media accounts which may place
                the children in danger, but [Mother] did not
                meet her burden in proving that the minor
                children's access to the Internet has placed
                them in danger.
          4.    The parties' minor son was injured while in
                [Father's] care and did not notify [Mother] for
                two days, which is not in the best interests of
                the child, nor does it support [Father's] motion
                for 50-50 custody.




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           While these FOFs relate to concern over Father's
ability to properly care for the children, it does not indicate
that Father had committed any "family violence" as defined under
HRS § 571-2. To the contrary, the Family Court in the 2016 Post-
Decree Order found that "[b]oth parties appear to be loving,
caring parents." Further, it is telling that while the Family
Court did make a finding in the 2016 Post-Decree Order that
"there was domestic violence in the past[,]" it did not undertake
any analysis under HRS § 571-46(a)(9) to determine whether to
amend Father's joint legal custody with the children, thus
indicating that it did not find any family violence on the part
of Father.
           On appeal, Mother asserts that "[Father] continued a
pattern of domestic violence after the divorce aimed at
[Mother]." Mother notes that she testified that she has been
subjected to verbal abuse by Father, including at least one
occasion where Father had berated her with insults. Mother also
asserts that she was subjected to Father's "controlling behavior
and financial control, including refusing to pay much needed
child support, which itself exacerbated [her] financial dilemma."
While the definition of "family violence" is not limited to
physical acts of domestic violence, and may include non-physical
acts such as threats, see HRS § 571-2; see also Tumaneng v.
Tumaneng, 138 Hawai#i 468, 475, 382 P.3d 280, 287 (2016), it
cannot be said that Mother's allegations rise to the level of
"family violence".
           In sum, the record is devoid of any finding of family
violence on the part of Father in both the 2016 Post-Decree Order
and 2019 Post-Decree Order. Mother points to nothing in the
record that would indicate that Father committed family violence
as defined under HRS § 571-2. Therefore, there was no rebuttable
presumption against Father's joint custody of the three children,
and the Family Court did not err in its 2019 Post-Decree Order
for finding no history of abuse. We further note that to the
extent that the Family Court erred in concluding that Father


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rebutted the presumption under HRS § 571-46(a)(9), such error was
harmless in light of our conclusion.
           V. The Family Court did not err in relying
            on the GAL's recommendation and testimony

          Finally, Mother asserts that the Family Court erred in
relying on the testimony and recommendation of the GAL because
"it was premised on a faulty presumption that tainted the
opinion." Mother asserts that the GAL approached her assessment
of this case under the erroneous belief that Mother would not
relocate to Washington if the Family Court denied her motion to
relocate the children, and that such assumption rendered the
GAL's recommendation and testimony "less meaningful, if not
invalid." Mother also asserts that the GAL did not acknowledge
the prior domestic violence as being one of the reasons why
Mother intended to relocate.
          We first note that in the 2019 Post-Decree Order, the
Family Court explicitly found that "[i]t is unknown whether, if
her motion is denied, [Mother] will stay in [Hawai#i] with the
children or follow [her partner] to Washington." Therefore,
there is no indication that the Family Court's decision to deny
Mother's motion was guided by an apparently erroneous belief by
the GAL that Mother would not relocate to Washington in the event
her motion was denied.
          Further, while the GAL indicated that she was under the
belief that Mother would stay in Hawai#i should Mother's motion
be denied, her testimony provided ample support for her
recommendation to deny Mother's request to relocate the children
to Washington. In her testimony, the GAL noted that S.K.T. and
K.K.T. expressed their preference not to move to Washington, and
that while Z.K.T. expressed that he would move if Mother moved,
he also indicated that "if he didn't have to move he didn't want
to move." The GAL also noted that while K.K.T. had encountered
some issues in school, all three children were prospering with
their education and were receiving ample support from their
teachers and counselors. The GAL noted that the children were
doing well in their current living conditions in Hawai#i, and

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that the children were involved in a number of extracurricular
activities that they would not be able to continue if relocated
to Washington. The GAL also noted that the children's school
counselor expressed that it would be devastating for the children
to leave Father considering his active role in their lives.
Finally, the GAL indicated that Mother had not communicated a
specific plan to her for Mother's move and children's relocation
to Washington. Based on her testimony, the GAL provided ample
evidence supporting her recommendation to deny Mother's request
to relocate the children, even despite her apparently erroneous
understanding that Mother would stay if her motion was denied.
          As to Mother's second contention, while Mother
testified that she attempted to discuss instances of prior
domestic violence and verbal abuse with the GAL as one of the
reasons why she intended to relocate, there was no evidence
presented to the Family Court that this was one of the reasons
Mother sought to relocate to Washington. Indeed, Mother
testified that the reasons she sought to relocate the children to
Washington were to improve their living conditions with the
cheaper costs of living, provide better educational opportunities
and medical care, pursue employment opportunities, follow her
partner, and to be with her parents who intended to move to
Washington in the future. Nowhere in Mother's testimony does she
assert that the alleged domestic violence and verbal abuse was
one of the reasons Mother sought to relocate to Washington.
Mother also did not indicate in her motion that she was
relocating to Washington because of Father's alleged domestic
violence.
          Based on the foregoing, we conclude that the Family
Court did not abuse its discretion in denying Mother's request to
relocate the children to Washington, and in granting joint
physical custody of the children to Father and Mother.
                         VI. Conclusion
          The Family Court of the Third Circuit's "Order Re
Plaintiff's Motion and Declaration for Post-Decree Relief filed
on 06/21/2018 and Defendant's Motion for Post-Decree Relief to

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  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER


Modify Physical Custody and Visitation Orders filed on
04/23/2019," entered on August 6, 2019, is affirmed.
          DATED: Honolulu, Hawai#i, July 31, 2020.


On the briefs:                        /s/ Lisa M. Ginoza
                                      Chief Judge
Kai Lawrence,
(Rebecca A. Copeland on the           /s/ Derrick H.M. Chan
opening brief),                       Associate Judge
for Plaintiff-Appellant.
                                      /s/ Keith K. Hiraoka
Daniel S. Peters,                     Associate Judge
for Defendant-Appellee.




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