KP v. EM. Concurring and Dissenting Opinion by Ginoza, J., in which McKenna, J., Joins. ICA s.d.o., filed 03/28/2024 [ada], 154 Haw. 89. Application for Writ of Certiorari, filed 07/05/2024. S.Ct. Order Accepting Application for Writ of Certiorari, filed 09/04/2024 [ada].

• Court: Hawaii Supreme Court
• Decided: September 15, 2025
• Docket: SCWC-22-0000357
• Status: Published

Opinion

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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 15-SEP-2025 09:28 AM Dkt. 21 OPA

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

KP, Petitioner/Petitioner-Appellant,

vs.

EM, Respondent/Respondent-Appellee.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CASE NO. 2PA211000062)

SEPTEMBER 15, 2025

RECKTENWALD, C.J., EDDINS, AND DEVENS, JJ.; WITH GINOZA, J., CONCURRING SEPARATELY AND DISSENTING, WITH WHOM McKENNA, J., JOINS

OPINION OF THE COURT BY EDDINS, J.

This child custody case involves the custody and relocation

of two young children. They were born in Utah in 2016 and 2018

to two young adults who had grown up in Utah. The children

moved to Hawaiʻi with their mother, KP (Mother), in December *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

2019. EM (Father) moved to Hawaiʻi a few months later, in March

2020.

In May 2021, Mother sought sole legal and physical custody

of the children. She claimed Father was sexually abusing his

five year-old son and three year-old daughter. In August 2021,

Father sought sole legal and physical custody. He also

requested permission to move with the children back to Utah.

After a three-day bench trial, the court granted custody to

Father, and allowed him to move to Utah with the children.

Mother was granted supervised visitation.

Mother raises three arguments on appeal. First, she argues

that the trial court erred by excluding fact and expert witness

testimony regarding the credibility of the children’s sexual

abuse disclosures. Second, she claims the court erred in

excluding hearsay evidence about the disclosures. Third, Mother

argues that the court abused its discretion in awarding Father

sole custody and allowing him to relocate to Utah with the

children.

We hold that the family court (1) made proper evidentiary

rulings; and (2) did not abuse its discretion in awarding Father

legal and physical custody and allowing him to move with the

children to Utah.

The family court correctly ruled that under State v.

Batangan, it is improper for a witness to testify about the

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credibility of an alleged child sexual abuse victim. 71 Haw.

552, 799 P.2d 48 (1990). The court also correctly precluded

evidence as inadmissible hearsay.

We also hold that the family court did not abuse its

discretion in awarding Father sole legal and physical custody

and approving Father’s relocation to Utah with the children.

The court properly considered the relevant Hawaiʻi Revised

Statutes (HRS) § 571-46(b) (2018) factors. Our review of the

record supports the court’s findings.

We affirm the ICA’s judgment and the family court’s

decision and order.

I.

A. Factual Background

Mother and Father have two children together: a boy, Jack,

and a girl, Grace. (To protect the minors’ privacy, we use

pseudonyms.)

Mother, an only child, was born in Oregon, and raised in

Colorado. She moved to Utah at age sixteen. Father was born

and raised in Utah.

Mother and Father met in Utah as sixteen year-olds and

“connected through mutual drug use.” They both had alcohol and

drug addictions. Their drug use included heroin and

methamphetamine.

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Mother and Father lived with Mother’s parents. Father

reported moving out of his mother’s home because she did not

tolerate drug use. Mother’s parents allowed KP and EM to use

drugs and skip school while living in the home.

Jack was born in November 2016. Mother and Father were

then eighteen years old. After their son’s birth, both stopped

using drugs for almost two years. They continued living with

Mother’s parents until after their second child was born.

Grace was born in March 2018. Mother and Father were

twenty years old. After Grace was born, they moved out of

Mother’s parents’ home in Utah. In November 2018, they

purchased their own home. Father worked in a regional grocery

store warehouse while Mother was a stay-at-home mom.

In early 2019, both relapsed.

KP and EM broke up. Mother moved back in with her parents.

They split custody without a formal custody agreement. The

children spent the night at either Father’s house, the maternal

grandparents’ house, or Paternal Grandmother’s house. Father

moved in with his father and attended an outpatient program.

Then they entered separate in-patient drug rehabilitation

programs. In March 2019, Mother was admitted to a holistic drug

rehabilitation facility in Colorado. It allowed her to care for

the children. Father attended treatment in Utah.

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In December 2019, Mother moved with the children and her

parents to a house in Pāʻia, Maui. The record does not explain

Mother’s parents’ connection to Maui or show whether Mother’s

parents rented or owned the Pāʻia home. Soon Mother relapsed.

In February 2020, Mother sought treatment from a Kahului, Maui

rehabilitation facility.

In March 2020, three months after Mother moved from the

mainland to Maui, Father moved to Maui. He wanted to be part of

his children’s lives. When he moved, he was under the

impression the move was temporary, and they would move back to

Colorado or Utah to co-parent the children.

Father found work at the Maui Dragon Fruit Farm. He earned

$1,500 a month, collected around $400 a month in food stamps,

and received housing through his employer. Father took a second

job. He worked at Cheeseburger in Paradise, and then at Paia

Fish Market in Lahaina.

At the farm, Father lived in the master bedroom of an RV.

That room had a separate entrance. In July 2021, Father’s

employer promoted him to manager. She also offered Father a

three-bedroom, two-bathroom home on the property to use when the

children visited.

In July 2020, Mother sought refuge at a domestic violence

shelter. Mother’s thirty-nine-year-old boyfriend had assaulted

her. On July 18, 2020, Mother reported to Maui police that her

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boyfriend of four months had confined her to a room and

threatened to stab her to death if she left. The two had smoked

methamphetamine earlier that day. The boyfriend punched and

strangled her. The man threatened to kill her and her children.

Against Father’s wishes, Mother had at times let the

children stay with Mother and the boyfriend. The parties

dispute whether the children saw violent acts and drug use when

Mother dated the man.

Weeks later, in August 2020, Mother’s parents (Maternal

Grandmother and Maternal Grandfather) rented a home in Kahakuloa

that the custody evaluator described as an upscale home. Mother

and the children moved in. Maternal Grandmother said they moved

there because “there was a drug house across the street [from

the Pāʻia House].” The custody evaluator reported that they

moved “partly to get her away from the drug-related culture

[Mother] was exposed to in Paia.”

Soon after they moved in, still in August 2020, Maternal

Grandmother and Mother purportedly saw the children engaged in

“sexually suggestive behaviors.” Maternal Grandmother told

Mother she saw “red flags.” Mother also later reported to Child

Welfare Services (CWS) “[that Jack] made humping movements, [and

the children put their] butts in each other’s faces, thinking it

was funny.”

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Mother hatched a plan. That same month, Mother told Father

she had video surveillance of him sexually abusing the children

at her parents’ previous house in Pāʻia. (She did not.) Father

denied sexually assaulting his son and daughter. Later he said

that he didn’t know where Mother’s accusation came from, and

that he knew he hadn’t done anything wrong. Months later Mother

told a custody evaluator that she had lied to Father about the

footage because she “hop[ed] that [Father] would admit what he

did.”

Father reported that after the false accusation, he did not

feel safe. He visited with the children in public parks or at

the maternal grandparents’ home with supervision. Only twice

did he have the children at his home for overnight visits.

Father testified that in December 2020, Mother said she

would give him custody and allow him to take the children to

Utah. “[S]he’s had enough and she doesn’t want to be a mother

anymore . . . [she] told me that she wants me to take the kids

full time and if I want to do that in Utah, I can.” He had

previously shared this information with the custody evaluator,

Sandy Shiner (CE Shiner).

Father gave notice to the dragon fruit farm and the Paia

Fish Market that he was returning to Utah with his children.

Father’s employer at the fruit farm wished him well. She

purchased tickets for Father and the two children to return in

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early January 2021. But just hours after Father quit his food

service job, Mother called. The plan “isn’t happening,” she

said. The children and Father therefore remained in Hawaiʻi.

Three months later, in April 2021, Maternal Grandmother

called CWS. Father had been sexually abusing the children, she

reported. She “cit[ed] various sexualized behaviors by the

children that started in August of 2020.” Maternal Grandmother

also disclosed neglect for “failure to protect” by Mother.

CWS interviewed Mother. Mother informed CWS that she did

not believe Father posed a danger to the children. CWS

suggested a Children’s Justice Center interview. Mother

declined the interview, the CWS worker reported, because “she

believes [the behavior the children have been displaying] is not

in relation to anything the father has done.”

Father believed that Maternal Grandmother’s report was

motivated by her wish to gain custody of the children and to

prevent Father from returning with them to Utah.

B. Family Court Proceedings

At the time of the following proceedings, Jack was around

four and Grace was around three.

Judge Keith E. Tanaka of the Family Court of the Second

Circuit presided over the custody case from May 6, 2021 to

around June 15, 2021. Judge Adrianne N. Heely presided from

June 16, 2021 to around January 13, 2022. Then, around January

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13, 2022, Judge Lance D. Collins replaced Judge Heely as the

presiding judge.

On May 6, 2021, Mother filed a “Petition for Custody,

Visitation, Support Orders After Voluntary Establishment of

Paternity” in family court. Mother sought legal and physical

custody of the children, and requested that Father be denied

visitation with the children “until further order of the Family

Court.”

On May 26, 2021, Mother moved for pre-decree relief. She

sought sole legal and physical custody of the children, and

requested that Father (1) “be ordered to undergo substance abuse

and mental health assessments,” (2) “be allowed supervised

visitation only,” and (3) “be forbidden from any threats or harm

to [Mother] or the children, and from taking the children off

island, like to paternal grandmother and family in the

continental [United States].”

On June 3, 2021, the family court held a hearing on

Mother’s custody petition, and pre-decree relief motion. The

court deferred its custody determination to a future hearing

pending a custody evaluation. It temporarily granted Father

unsupervised visitation with the children from 10 a.m. to 4 p.m.

on weekends, subject to Father’s negative drug test, and

referred Mother’s allegation of “inappropriate touching” of the

children to CWS for further investigation and report.

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Ten days later, on June 13, 2021, Mother reported to the

Maui Police Department (MPD) that the children were “sexually

assaulted by their father” in April 2021. Sexually assaulting a

child ranges from a class A felony, punishable by twenty years

of imprisonment, to a class B felony punishable by a ten-year

term of imprisonment, to a class C felony punishable by a five-

year term of imprisonment. HRS § 707-730(1)(b) and (2) (2014),

§ 707-731(1)(a) (2014), § 707-732(1)(b) (2014); HRS § 706-660

(2014 & Supp. 2016), § 706-659 (2014).

During Mother’s interview with MPD, the responding officer

noted that Mother changed her statements over the course of the

interview and failed to make eye contact with the officer during

the interview. The officer reported that “she was observed to be

laughing and smiling at times and not upset over the allegations

involving her children.”

Father chose to make a statement to police two hours later.

Father denied sexually touching his own children.

MPD Detective Oran Satterfield was later assigned to

investigate Mother’s allegations.

Thereafter, between June 18, 2021 (five days after her

report to MPD), and October 20, 2021, Mother filed four sets of

Ex Parte Petitions for a HRS § 586-4 (2018 & Supp. 2021)

temporary restraining order (TRO) on behalf of each child. All

eight petitions alleged a threat of child sexual abuse by

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Father. The family court dismissed all but one petition. (The

court granted one six-month protective order, which the family

court dismissed nearly four months later, after multiple

continuances and the custody trial.)

On June 29, 2021, the Children’s Justice Center (CJC)

interviewed the children. Neither child made disclosures of

sexual abuse. CWS supervisor Annie Reinecke (SW Reinecke) and

MPD Detective G. Katayama attended the CJC interview. They both

reported that the children made no disclosures about sexual

assault during the forensic interview.

The next day, Mother filed another set of TROs on behalf of

the children against Father. The TROs were denied without a

hearing.

On July 8, 2021, CWS submitted a ten-page court-ordered

report assessing “allegations of sexual abuse/threat of sexual

abuse” of the children by Father, and “physical neglect/threat

of physical neglect (failure to protect)” of the children by

Mother, pursuant to HRS § 586-10.5 (2018). CWS concluded that

“[s]exual abuse and threat of sexual abuse of [the children] by

[Father] is not confirmed.” (Emphasis added.)

The report stated that “[t]here is insufficient evidence to

determine the children have been molested” and that “there is

too much ambiguity with respect to context, who, what, where,

when and how to determine abuse.” CWS deemed audio and video

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recordings of alleged disclosures (taken and provided by Mother)

as “highly suggestible and leading.”

CWS also had concerns about Mother’s boyfriends. “The

children have also been exposed to Mother’s boyfriends, of whom

no information is given with exception that there had been

exposure to domestic violence.” The report recommended that both

parents undergo a substance abuse assessment and random drug

testing to verify sobriety, and to attend a co-parenting

program.

On July 30, 2021, Mother took the children to the Maui

Memorial Medical Center emergency room. She requested a sexual

assault examination because Grace had allegedly expressed pain

to her vagina. A MPD sergeant called Detective Satterfield and

informed him of the request. Detective Satterfield called

Mother for more information. She wanted a sexual assault exam

because Grace expressed pain to her vagina area five days after

an unsupervised visit with Father. Detective Satterfield then

scheduled a same-day forensic medical examination.

Sexual assault nurse examiner Jennifer Baumstark (Nurse

Baumstark) examined both children. Grace allowed Nurse

Baumstark to conduct a physical evaluation, and take photos of

her anus and perineum. Grace did not have any injuries. Mother

helped the nurse collect rectal DNA samples from both children

to be sent for testing. Jack refused a physical evaluation and

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to have pictures taken, but let Mother take rectal DNA swabs of

the anal area under Nurse Baumstark’s supervision. The tests

were inconclusive.

During the visit, Jack stated to the examiner that his

father “touches [his] butt[.]” Nurse Baumstark shared this

disclosure with Detective Satterfield. Detective Satterfield

later submitted Nurse Baumstark’s medical reports as part of his

report to the Office of the Prosecuting Attorney.

On August 5, 2021, court officer and CE Shiner filed a

fourteen-page custody evaluation report with the family court

based on interviews and home-visits. CE Shiner interviewed

Mother, Father, and other collateral contacts including Maternal

Grandmother, Maternal Grandfather, Paternal Grandmother, and

Father’s employer at the farm.

CE Shriner recommended joint legal and physical custody.

Regarding Father, she concluded that he “appears to be a caring,

nurturing parent, and the children appear comfortable with him.”

“Father has a home and much family support in Utah if the Court

decides that he should be allowed to move back to Utah with the

children. Meanwhile, he has found a job and set up at least

temporary housing for himself and the children while living on

Maui.” CE Shiner stated that if the court determined that the

children should move with Father to Utah, she would not

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recommend that Mother return to Utah to share custody with

Father on her own without Mother’s parents.

As for Mother, CE Shiner reported that Mother also appears

to be a caring, nurturing parent, and that Mother’s parents

provide full support in raising the children on Maui. “Due to

[Mother’s] history of getting involved with abusive partners and

relapsing on drugs when she is not closely monitored by her

parents,” CE Shiner concluded, “it is not recommended that she

have custody of the children if she is living on her own until

there is further order of the Court.”

On August 12, 2021, Father filed a “Motion for Emergency

Custody and Relocation.” He requested temporary emergency

custody of the children and permission to relocate with the

children to Utah. After Mother filed her response, the court

granted several continuances, extending the trial date to

January 2022. Father’s motion was not heard until trial began

on January 28, 2022.

Meanwhile, without a court order or Father’s consent,

Mother began taking the children to play therapy with a private

therapist, Dr. Goldberg. Mother’s attorney had referred Mother

to her, Dr. Goldberg believed. On August 13, 2021 – the day

after Father’s emergency petition – the children began play

therapy. During the children’s second visit, around August 25,

2021, both children purportedly made disclosures that Father

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“put his finger up [their] butts.” As a mandatory reporter, Dr.

Goldberg reported the incident to CWS.

On September 10, 2021, Detective Satterfield and CWS social

worker Leslie Armstrong (SW Armstrong) interviewed Dr. Goldberg.

Detective Satterfield testified that the purpose of the

interview was to “get more information about what happened in

that therapy session.” Dr. Goldberg confirmed the disclosures,

noting that for both children, “[w]e were building [with toys]

and [the disclosure] kind of came out of nowhere.”

On October 20, 2021, Mother filed another TRO on behalf of

Jack against Father – now based on the children’s disclosures to

Dr. Goldberg. It was the seventh order for protection petition

she had filed against Father. Mother alleged that on October

16, 2021, following an unsupervised visit with Father, Jack

disclosed to Dr. Goldberg that Father touched his “peepee”

earlier that day. Mother’s petition also alleged that Jack

previously disclosed sex abuse to Dr. Goldberg, that she

reported Jack’s disclosure to the police, and that Dr.

Goldberg’s reporting ultimately required Detective Satterfield

and SW Armstrong to interview Dr. Goldberg on September 10,

2021.

The court issued a same-day TRO for Jack against Father, to

expire April 18, 2022. The TRO also prohibited Father from

contacting Grace and maternal grandparents.

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Based on his interview with Dr. Goldberg, Detective

Satterfield referred the children for another forensic

interview. On October 25, 2021, the Wailuku Children’s Justice

Center re-interviewed the children. During those interviews,

unlike during the first set of June 2021 CJC interviews, the

children made disclosures. According to the CWS report

summarizing the interviews, when asked why he was at the

interview, “Jack said it was to tell secrets.” “Jack reported

that ‘daddy touches my butt and my peepee[,]’ [and Jack] said

this happened at the Dragon Fruit Farm and was not continuing to

happen.” The report also explained that “Grace reported ‘Daddy

touches my butt and Jack’s butt[.]’ Grace said it has happened

at the Dragon Fruit Farm and the park. The children were not

able to expand on these disclosures at all, so it is unclear if

this is in reference to helping the children toileting or

bathing or if this is indeed inappropriate touching.”

On October 29, 2021, CWS submitted a three-page report

requested by the court, relating to the October 20, 2021 TRO.

The report confirmed the “[t]hreat of sex abuse” to children by

Father. (SW Armstrong later testified that a “threat” of abuse

does not mean that evidence confirmed actual abuse occurred – it

only establishes “a possibility of that harm happening.”) The

report summarized disclosures made during the forensic

interviews of the children at the CJC, but noted that because

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“[t]he children were not able to expand on these disclosures,”

it was unclear if the disclosures were in reference to Father

“helping the children [with] toileting or bathing or if [the

disclosures were] indeed [in reference to] inappropriate

touching.”

On November 8, 2021, the court issued an “Order for

Protection” on behalf of Jack and against Father, with an

expiration date of May 8, 2022. One month later, on December 8,

2021, Judge Heely filed an amended protective order which

appeared nearly identical to her original protective order, with

the same expiration date of May 8, 2022.

Around January 13, 2022, Judge Lance D. Collins replaced

Judge Heely as the presiding judge in the case.

C. The Trial

On January 28 and 31, 2022 and February 15, 2022, the court

held a bench trial to determine custody, relocation, and

visitation in response to Mother’s May 2021 custody petition and

Father’s August 2021 emergency custody and relocation motion.

Thirteen witnesses testified. Besides Father and Mother,

Detective Satterfield, Father’s co-worker Cameron Richards, SW

Armstrong, Nurse Baumstark, CWS social worker Christianna

Bhader, psychiatrist Dr. Brian Teliho, SW Reinecke, CE Shiner,

psychologist Dani Riggs (Psychologist Riggs), Paternal

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Grandmother, and Dr. Goldberg testified. Maternal Grandmother

and Maternal Grandfather did not testify.

The family court had lots of information to decide this

case. The parties stipulated into evidence many exhibits. That

evidence included photographs, pleadings, “reports received by

the court from Child Welfare Services,” “reports received by the

parties from the court-appointed supervised visit monitor,”

“reports received by the court from the court-appointed custody

evaluator,” “all exhibits that consist of Maui Police Department

reports,” “certificates of completion [of drug rehabilitation],”

and “recordings made of interviews with the subject minor

children at the Children’s Justice Center.”

Next, we outline the trial’s relevant evidentiary

exchanges.

1. Detective Satterfield

Father called Detective Satterfield, a MPD sex assault unit

detective. Detective Satterfield testified that he was assigned

to investigate a report of possible sexual abuse of the children

by Father. He later submitted his investigation to the Office

of the Prosecuting Attorney for review in late 2021. As of the

February 2022 trial, Detective Satterfield testified that he

hadn’t heard anything from the Prosecutor’s office regarding the

case. He added that during his investigation, he did not

directly interview the children.

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During cross-examination, Mother’s counsel asked Detective

Satterfield if he believed the children were sexually abused.

The court sustained Father’s counsel’s objection, basing that

ruling on Batangan:

[Mother’s Counsel:] Okay. So do you believe these children were sexually abused?

[Father’s Counsel:] Objection, your Honor; calls for an opinion regarding the ultimate issue.

[The Court:] Yeah, I’m going to sustain it because I think it’s pretty clear and the case law [State v. Batangan] that witnesses cannot assist the [trier] of fact in determining this particular issue.

[Mother’s Counsel:] I’m just asking if he believes -–

[The Court:] I understand. And [State v. Batangan] is directly on point of this issue and it’s not allowed.

[Mother’s Counsel:] Okay. No further questions.

2. Nurse Baumstark

Mother’s expert witness Nurse Baumstark testified that she

conducted a sexual assault forensic examination of Grace, and

that Jack refused an examination. Mother had requested a sexual

assault examination after alleging that Grace reported pain to

her vagina five days after visiting Father. Nurse Baumstark

testified that Grace did not have any injuries, and that rectal

DNA swabs were inconclusive. She also relayed that during the

examination, Jack disclosed to her that Father “put his finger

in my butt.” The nurse later reported the disclosure to

Detective Satterfield. Mother’s counsel then asked if Nurse

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Baumstark believed Jack. The court sustained Father’s counsel’s

objection. Again, per Batangan.

[Mother’s counsel:] Did they appear to -– were there any other disclosures by the boy besides “dad put his finger in my butt”?

[Nurse Baumstark:] No.

[Mother’s Counsel:] Do you have any reason -– do you have any reason not to believe this child when he told you what his father did?

[Nurse Baumstark:] No, I –-

[Father’s Counsel:] I’m sorry. I’m going to object.

[The Court:] Hold on just a second. There’s an objection . . . what’s the objection?

[Father’s Counsel:] Well, she was posed as an expert in sexual assault examinations (inaudible). She’s testified so far but it’s going beyond the (inaudible) started talking about it and it also violates, you know, the issue of ultimate issue.

[Mother’s Counsel:] Asking if she’s -- if she believes them, has a reason to believe them, if they present as if –-

[Father’s Counsel:] She would be giving an opinion as to their credibility.

[Mother’s Counsel:] I don’t see anything wrong with that.

[The Court:] Yeah, I think that question falls under [State v. Batangan] so I’m not going to allow it.

[Mother’s Counsel:] No further questions.

3. Psychologist Riggs’ Testimony

Mother called another expert witness. Psychologist Dani

Riggs testified generally about child sexual abuse. He said

that he had reviewed CE Shiner’s custody evaluation report, MPD

records, “some TROs,” the October 29, 2021 CWS Report, a

protective order, psychological evaluation of Mother, and

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psychosexual evaluation of Father. Mother’s counsel asked

whether repeating allegations (as the children did in this case)

is a “normal” response. The court sustained Father’s counsel’s

objection.

[Mother’s Counsel:] Thank you. Is it your experience that very, very young children would repeat the same thing over and over again in their disclosures?

[Psychologist Riggs:] Yes.

[Mother’s Counsel:] Is that suspicious to you or is that what you would consider to be a normal response?

[Father’s Counsel:] I’m going to (inaudible).

[Mother’s Counsel:] Objection.

[The Court:] Hold on a second.

[Psychologist Riggs:] I’m sorry.

[Father’s Counsel:] I’m going to renew my objection. There was –- she’s trying to back door what has been submitted (inaudible).

[The Court:] Okay. So [State v. Batangan] says that an expert testimony explaining seemingly bizarre behavior of a child sex abuse victim is helpful. That opinions on the truthfulness or believability of a child victim report of abuse is of no assistance to the fact finder.

[Mother’s Counsel:] Is it no [sic]?

[The Court:] Is of no assistance to the fact finder. So to the extent that Mr. Riggs is explaining seemingly bizarre behavior of a child sex abuse victim, that is permitted, but he is not permitted to render an opinion on truthfulness or believability of the child victim’s reported abuse.

. . . .

[The Court:] You can elicit opinion testimony from him that explains seemingly bizarre behavior, but you can’t ask him questions that indirectly are seeking opinion of truthfulness or believability.

[Mother’s Counsel:] I’m not asking him for truthfulness or believability. I’m just asking if that’s a common –-

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[Mother’s Counsel:] Yeah, I’m asking if this is a normal response, is all –-

[The Court:] Well, so that goes to truthfulness and believability, so he can give an opinion about behavior of child sex abuse victims in general, but he can’t give an opinion on truthfulness or believability. So if you’re asking him if in this specific instance if what the children are doing is normal –

[Mother’s Counsel:] (Inaudible) response to trauma.

[The Court:] It’s touching on the truthfulness and believability. So if you can rephrase the question, it may be appropriate, but I’ll have to sustain the objection.

4. SW Armstrong’s Testimony

DHS social worker Armstrong testified that she conducted

investigations relating to Mother’s concerns that Father may be

sexually abusing the children and, through these investigations,

contributed to the July 8, 2021 and October 29, 2021 CWS reports

to the court. Father’s counsel asked whether SW Armstrong

believed that Father abused the children. Counsel also asked

her whether she told Father that she believed he had abused the

children. The court sustained Mother’s objection to both

questions under Batangan.

[Father’s Counsel:] Did you form an opinion at that time whether or not there was any -- at that time whether or not there was any sexual abuse of the children by [Father]?

[Mother’s counsel:] Objection, your Honor; again, it doesn’t –- it calls for a conclusion. It goes beyond her report.

[The Court:] I will – yeah, I’ll sustain that objection because I think that falls within the [State v. Batangan] issue.

[Mother’s Counsel:] Thank you.

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[Father’s counsel:] Did you have any conversation with [Father]?

[SW Armstrong:] Yes.

[Father’s Counsel:] And did you convey to him whether or not you believed that there had been any sexual abuse to the children?

[Mother’s Counsel:] Objection, your Honor.

[The Court:] I’m going to sustain that. I still think that that’s within the [State v. Batangan] scope.

5. Dr. Goldberg’s Testimony

Mother called Dr. Goldberg as a fact witness. Dr. Goldberg

testified that she provided therapy to the children. Shortly

after the start of Dr. Goldberg’s direct examination, Father’s

counsel objected to Dr. Goldberg testifying as to what the

children disclosed to her during their therapy sessions, citing

Hawaiʻi Rules of Evidence (HRE) Rule 804(b)(6). Mother didn’t

quarrel with the 804(b)(6) argument. Rather, she argued that

per HRE Rule 803(b)(24), “reliable trusted sources are allowed

to speak on behalf of the children that have been abused.” The

court held that because Dr. Goldberg was not called as an

expert, she could only testify “based on her personal

knowledge . . . and not as an expert.”

[Father’s Counsel:] So the rule that I’m referring to is 804(b)(6), a statement made by a child under the age of 16 describing an act of sexual contact or penetration or physical violence (inaudible) performed with or against the child by another if the Court determines the content and circumstances of the statement provide strong assurance of trustworthiness . . . . I don’t know. She hasn’t provided a foundation for any of those things.

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[Mother’s Counsel:] I’m happy to do that, your Honor, if the Court will allow me time.

[The Court:] Okay. So I think before we get to that, that foundation will have to be laid. I was under the impression that experts were previously agreed that experts who testified were experts [sic] but there seems like there might be a disagreement about what Dr. Goldberg was supposed to be an expert on, and so that’s also another factor because conceivably, the hearsay that she’d be speaking to would be something that she’s basing her expert opinions on. And so if she’s not qualified as an expert in a certain area, she may not be allowed to testify about any of this at all. So can we first get clarification what Dr. Goldberg is an expert in.

[Mother’s Counsel:] Certainly. And you’re right. That was agreed to by stipulation of the parties. I apologize, your Honor. We did not list Dr. Goldberg as an expert.

[The Court:] Okay. So then I guess there’s no agreement that she’s an expert. What is Dr. Goldberg going to be testifying on?

[Mother’s Counsel:] She’ll testify that she provided therapy to the children and their response to that therapy, which included disclosures of sex abuse and more details of sex abuse than from disclosures to other professionals. And as a professional, we would say that she is a trusted reliable source and should be able to repeat what the children said.

(Emphases added.)

The court then allowed Dr. Goldberg to testify as to her

observations of the children’s physical behavior during therapy,

before Father’s counsel objected to Dr. Goldberg describing what

the children disclosed to her. Judge Collins sustained Father’s

objection. He stated, “I think under [HRE] Rule 803(a)(1),

unless the statement is being offered against [Mother], I’m

going to have to sustain the objection because otherwise it’s

inadmissible hearsay.”

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6. Family Court Order

After trial, on March 28, 2022, the family court issued its

“Findings of Fact, Conclusions of Law, Decision and Order”

granting sole custody and relocation to Father, and supervised

visitation to Mother. The court made 106 findings of fact

(FOFs) and twenty-five conclusions of law (COLs).

FOFs 1 through 53 outlined Mother’s and Father’s

backgrounds and social histories. Those FOFs described how

Mother and Father met in Utah as teenagers, started using drugs,

had children at age eighteen, and had entered different

rehabilitation programs over the years. The court made findings

regarding the couple’s separation, Mother’s move to Maui with

her parents, and the parties’ present residential, employment,

and sobriety situations. It also set forth findings regarding

Father’s proposed living situation with the children in Utah.

FOFs 65 through 101 detailed Mother’s allegations of sexual

abuse from April 2021 through the family court proceedings.

FOFs 102 and 103 determined that both parents have the potential

to relapse, but found that Father has “deeper and clearer

insight into his addiction, his present state[, and] his history

of drug use.”

Last, FOFs 104-106 found that based on clear and convincing

evidence, Mother abused court processes by filing multiple TROs

that were later denied for insufficient evidence. (The December

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8, 2021 amended protective order was dissolved by the court’s

decision and order.)

The family court concluded that Father could provide a

stable, safe, and wholesome home for the children in Utah. In

contrast, Mother was not presently a fit or proper parent who

could do the same. Father’s relocation plan, the court

concluded, “is realistic, credible[,] and sustainable.” Last,

the court determined, Mother’s conduct “demonstrates she is

unable to act in the best interest of the minor children and

that unsupervised visitation of the children would presently be

detrimental to their best interest,” and that her “actions

demonstrate that either she is unable to separate her needs from

the minor children or she is unable to protect the children from

her parents’ needs and wants.”

On April 7, 2022, Mother filed a “Motion for

Reconsideration, Clarification and Further Hearing[,]” pursuant

to Hawaiʻi Family Court Rules (HFCR) Rules 59, 60, and 10. The

court denied Mother’s reconsideration motion.

D. ICA Proceedings

Mother appealed. She claimed that “Judge Collins erred as

a matter of law, and abused his discretion” by (1) dissolving

the December 8, 2021 amended protective order, (2) “grant[ing]

Father sole custody and relocation to Utah with the children”;

and (3) “limit[ing] Mother to supervised visitation of uncertain

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time, place and duration.” She also argued that Judge Collins

violated Mother’s due process rights and fundamental liberty

interest in the care, custody, and control of the children by

(1) “limiting this case to a two-day trial,” (2) “refusing to

admit evidence regarding the credibility of the children’s

disclosures[,]” and (3) precluding testimony and evidence on

hearsay grounds.

Father argued that the court did not err in awarding him

sole legal and physical custody. He maintained that Judge

Collins’ “findings of fact set forth more than a sufficient

basis for his conclusions that Father is a fit and proper parent

who can provide the children with a stable, wholesome, and safe

home.”

The ICA affirmed the family court’s decision and order, and

its reconsideration denial. It held that the family court did

not abuse its discretion in dissolving Judge Heely’s amended

protective order.

The ICA also held that “the family court did not err in

awarding [F]ather sole physical and legal custody, and granting

[F]ather permission to relocate and return to the State of Utah

with the children. The family court made sufficient findings

and conclusions, based on the record evidence, that this would

be in the children’s best interest.”

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E. Supreme Court Proceedings

Mother appealed. We accepted cert.

First, Mother argues that the court’s refusal to admit

“critical” trial testimony pursuant to Batangan resulted in an

unfair trial and a violation of her due process rights. Mother

claims the court erred by excluding expert and lay testimony

relevant to whether sexual abuse happened. These issues, she

maintains, are relevant to the court’s custody determination.

Second, Mother asserts that the court erred by precluding

hearsay testimony from Dr. Goldberg because HRE Rules 803(b)(24)

and 804(b)(6) applied. She also claims the court erred in

refusing to admit into evidence the transcript of Detective

Satterfield’s interview with Dr. Goldberg.

Last, Mother maintains that the ICA erred in “summarily”

affirming the family court’s decision to dissolve Judge Heely’s

amended protective order, grant Father sole custody and

relocation to Utah, and limit Mother to supervised visitation

based “solely” on her request for said protective orders. She

claims that by allowing Father to relocate the children to Utah

and denying Mother unsupervised visitation, the court “intended

to remove her from any meaningful role in her children’s lives.”

Mother argued that the findings supporting the court’s

conclusions were “clearly erroneous.” She insists that the

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court based its decision “solely” on her misuse of process in

bringing “false allegations of abuse.”

We hold that the family court properly precluded witness

testimony regarding the credibility of the children’s

disclosures. Per Batangan, “expert testimony on a witness’

credibility is inappropriate” and “conclusory opinions that

abuse did occur and that the child victim’s report of abuse is

truthful and believable . . . should not be admitted.” 71 Haw.

at 557-58, 799 P.2d at 51-52. The Hawaiʻi Rules of Evidence

govern family court proceedings. See In re ASK, 152 Hawaiʻi 123,

127, 522 P.3d 270, 274 (2022). Batangan applies. Thus, because

Mother’s counsel asked the witnesses whether they believed the

children - in other words, whether the children’s disclosures

were credible – the family court properly sustained Father’s

objections to their testimony.

We also hold that Batangan applies to credibility testimony

by non-expert witnesses. See In re Doe, 70 Haw. 32, 35, 40, 761

P.2d 299, 301, 304 (1988). Thus, we conclude that the court did

not err in sustaining Father’s counsel’s objection to fact

witness Detective Satterfield’s testimony regarding whether he

believed the children. See id.; Batangan, 71 Haw. at 558, 799

P.2d at 52.

Second, we hold that the family court did not err in

excluding Dr. Goldberg’s testimony regarding the children’s

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disclosures during play therapy. We hold that Mother failed to

meet the HRE Rule 804(b)(6) and HRE Rule 803(b)(24) hearsay

exception requirements. And because the transcript of Dr.

Goldberg’s interview with Detective Satterfield describing the

children’s disclosures was admitted as an exhibit, even if the

court erred, the omission constituted harmless error. In re

Doe, 100 Hawaiʻi 335, 346 n.23, 60 P.3d 285, 296 n.23 (2002).

Last, Mother’s arguments that the court based its decision

“solely” on Mother’s alleged abuse of process in filing multiple

TROs lacks merit. The court exhaustively detailed its many

reasons justifying the custody order. The court did not

“solely” rely on “abuse of process” findings to award Father

custody.

We hold that the family court did not abuse its discretion

in awarding Father sole custody and allowing him to relocate to

Utah with the children. See HRS § 571-46(b); Fisher v. Fisher,

111 Hawaiʻi 41, 50, 137 P.3d 355, 364 (2006). The family court

properly considered the relevant HRS § 571-46(b) factors and did

not err in concluding that relocation with Father was in the

best interest of the children.

The family court’s findings and conclusions were supported

by sufficient evidence. First, despite allegations, there was

no finding of sexual abuse of the children by Father. See HRS

§ 571-46(b)(1) (“Any history of sexual or physical abuse of a

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child by a parent.”). As explained below, evidence supports the

family court’s following findings. Father has repeatedly denied

any sexual touching or abuse of the children. In court, he

denied sexually assaulting his son and daughter. Mother

initially did not believe Maternal Grandmother’s April 2021

reports of sexualized behaviors to CWS, and declined to allow

the Children’s Justice Center to interview the children.

Mother’s report of sexual abuse to MPD was initiated ten days

after her unsuccessful June 3, 2021 motion for temporary

custody. During Mother’s interview with MPD, the responding

officer reported that Mother changed her statements and acted

strangely. She failed to make eye contact, the officer wrote,

and “she was observed to be laughing and smiling at times and

not upset over the allegations involving her children.”

The court further found that CWS did not confirm sexual

abuse. CWS was unable to rule out toileting and bathing

activities, pinworms causing pain in the buttocks, or exposure

to Mother’s ex-boyfriends or other family members as the cause

of the children’s statements. The children did not make any

disclosures of sexual or inappropriate sexual touching by Father

during their first Children’s Justice Center forensic interview.

Based on a second CJC interview, where the children disclosed

Father touching their privates, CWS was unable to rule out

toileting or bathing assistance as the cause of the disclosures

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because “[t]he children were not able to expand on [the]

disclosures at all.”

Regarding the alleged sexualized behavior exhibited by the

children, the court found that “[t]here is no evidence that

Mother or her family sought to rule out any of the other adults

in the children’s lives.” The record supports that Mother and

Maternal Grandmother’s reports of post-August 2020 sexualized

behavior surfaced shortly after Mother allowed her children to

visit with her nearly forty-year-old ex-boyfriend who smoked

methamphetamine with Mother, assaulted Mother, and threatened to

kill Mother and her children.

Second, the record supports that by constantly interviewing

the children and conducting leading interviews of the children

regarding sexual abuse, Mother was unable to separate the

children’s needs from her own. See HRS § 571-46(b)(12) (“Each

parent’s actions demonstrating that they separate the child’s

needs from the parent’s needs.”). Evidence supports the court’s

finding that Mother coached the children to make statements

regarding inappropriate touching by Father. Nearly every

professional evaluating the allegations expressed concern that

Mother’s questioning of her children was suggestive and leading.

SW Reinecke also reported observations that caused her to

question Mothers’ mental health. SW Reinecke expressed concern

about Mother filming and submitting leading videos of her asking

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children leading questions about sexual assault. She was also

worried about Mother’s behavior related to the Children’s

Justice Center forensic interviews. Mother expressed urgency

about the interviews, then canceled the CJC’s first interview,

and later rescheduled. During the June 29, 2021 interview,

Mother nearly canceled the interview when she learned she could

not be in the room during the interview. This concerned SW

Reinecke.

The record also supports that given Maternal Grandmother’s

desire to gain custody of the children and her interference with

Father’s relationship with his children, Mother was unable to

protect her children from Mother’s parents’ needs.

Third, the family court’s conclusion that Mother has an

underdeveloped understanding of her addiction is supported by

evidence of Mother’s past drug use, Mother’s testimony before

the court regarding her drug use, and documentation of Mother’s

misrepresentation or denial of drug use to a court officer.

See HRS § 571-46(b)(13) (“Any evidence of past or current drug

or alcohol abuse by a parent.”). The evidence supports that

Father has better behavioral insight into his sobriety than

Mother.

Fourth, in assessing the overall quality of the parent-

child relationship between Father and his children, sufficient

evidence supports a finding that Father had a healthy

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relationship with his children. See HRS § 571-46(b)(3) (“The

overall quality of the parent-child relationship.”).

Fifth, evidence supports a finding that Father is better

equipped to support the physical health needs of the children

because Mother neglected to obtain health insurance or regular

health care for the children. See HRS § 571-46(b)(6) (“The

physical health needs of the child.”).

The children suffered from pinworms. Yet Mother and

Maternal Grandmother did not seek pediatric medical care to

treat the children’s discomfort. Upon learning this, SW

Reinecke recommended that Mother seek medical care for the

children to address the pinworm problem. She also sought to

rule out the pinworms as the source of the children’s buttock

pain reports. Mother and Maternal Grandmother ascribe to

naturopathic medicine, the evidence suggests, and do not take

the children to regular medical visits.

Sixth, the record supports the family court’s finding that

Mother’s accusations harmed the children’s connection to their

Father. See HRS § 571-46(b)(11) (“Each parent’s actions

demonstrating that they allow the child to maintain family

connections through family events and activities.”). After

Mother accused Father of abuse, Father no longer wanted to visit

with his children at maternal grandparents’ home. Father also

feared helping his children with their basic needs. He thought

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that helping the children bathe or use the bathroom would lead

to more accusations.

Seventh, the record supports the court’s holding that

Father’s relocation plan was “realistic, credible, and

sustainable,” and in the best interest of the children.

Evidence supports a finding that prior to separation from

Mother, Father was actively engaged in parenting the children.

See HRS § 571-46(b)(4) (“The history of caregiving or parenting

by each parent prior and subsequent to a marital or other type

of separation.”). For two years, after the birth of their first

child, Jack, Father and Mother parented together. The reports

and testimony indicated that Father has a loving, positive

relationship with his children.

As for the proposed Utah move, the court did not err in

finding that Father’s plan was realistic, credible, and

sustainable. Father has significant family support, childcare

assistance, and re-employment prospects. Paternal Grandfather

offered an apartment type portion of the house for Father and

the children to live in, near Paternal Grandmother and Father’s

siblings’ homes. The children were born in Utah, and were

familiar with their Utah family members.

Last, we hold that the record supports clear and convincing

evidence of Mother’s wilful misuse of the protection from abuse

process. The family court could reasonably infer from

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substantial evidence that it was highly probable that Mother

filed the four sets of TROs to gain an advantage in the custody

proceedings. See HRS § 571-46(b)(16); Iddings v. Mee-Lee, 82

Hawaiʻi 1, 13, 919 P.2d 263, 275 (1996); Fisher, 111 Hawaiʻi at

46, 137 P.3d at 360. Thus, the family court’s findings related

to misuse of the protection from abuse process were not clearly

erroneous, and the court did not abuse its discretion in

weighing the HRS § 571-46(b)(16) factor in Father’s favor.

Thus, the record supports the family court’s holding that

awarding Father sole legal and physical custody of the children,

granting the relocation request, and awarding Mother supervised

visitation serves the best interest of the children. We hold

that the court grounded its findings in the HRS § 571-46 factors

and based its findings on sufficient evidence. The family court

did not abuse its discretion.

Therefore, we hold that the family court (1) did not err in

sustaining the challenged objections at trial, and (2) the court

did not abuse its discretion in awarding Father sole legal and

physical custody and allowing him to relocate with the children

to Utah.

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II.

A. The family court did not err in sustaining objections to testimony regarding the credibility of the children’s disclosures

1. The court did not err in excluding testimony by Nurse Baumstark, Psychologist Riggs, SW Armstrong, and Detective Satterfield, pursuant to Batangan

The family court precluded some testimony by expert

witnesses Nurse Baumstark, SW Armstrong, and Psychologist Riggs,

and fact witness Detective Satterfield. Each time, the court

cited Batangan to exclude the witnesses’ testimony.

We hold that the family court properly ruled.

“Evidentiary rulings are reviewed for abuse of discretion,

unless application of the rule admits of only one correct

result, in which case review is under the right/wrong standard.”

State v. Ortiz, 91 Hawaiʻi 181, 189, 981 P.2d 1127, 1135 (1999).

As a general rule, witnesses may not testify about another

witness’ veracity. State v. Maluia, 107 Hawaiʻi 20, 24, 108 P.3d

974, 978 (2005) (“were-they-lying” questions, are improper,

among other things, because they encroach on the jury’s

credibility assessments, and they “are argumentative and have no

probative value”). Witness testimony about the credibility of

another’s specific statements, words spoken by that person

inside or outside the courtroom, lack probative value. See id.

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Batangan addressed the admissibility of expert opinion

testimony regarding the credibility of witnesses under HRE Rule

702. Per HRE 702, expert opinion testimony is admissible “[i]f

scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to

determine a fact in issue” and when the witness is “qualified as

an expert by knowledge, skill, experience, training, or

education.” HRE Rule 702.

Defendant Batangan was accused of sexually abusing his

daughter when she was six or seven years old. Batangan, 71 Haw.

at 554, 799 P.2d at 50. At trial, the State presented the

testimony of “an expert witness in the field of clinical

psychology with a subspecialty in the treatment of sexually

abused children.” Id. at 554-55, 799 P.2d at 50. The expert

opined on the child’s credibility based on his evaluation of the

child, and the “behavior of child sex abuse victims in general.”

Id. at 555, 799 P.2d at 50. He “testified as to how he

evaluates whether a child is telling the truth about being

sexually abused” and “then implicitly testified that [the]

[c]omplainant was believable and that she had been abused by

[Batangan].” Id.

This court vacated Batangan’s conviction and remanded for a

new trial. Id. at 562, 799 P.2d at 54. The trial court had

erred in admitting the expert’s testimony because “expert

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testimony on a witness’ credibility is inappropriate” and

unhelpful to the jury because such cases usually have only “the

victim’s accusation and the defendant’s denial,” such that

testimony about who to believe “is nothing more than advice to

jurors on how to decide the case.” Id. at 556-57, 559, 799 P.2d

at 51-52. Grounding its decision on the rules of evidence,

Batangan held that “[t]he pertinent consideration is whether the

expert testimony will assist the jury without unduly prejudicing

the defendant.” Id. at 558, 799 P.2d at 52.

The court explained that while expert testimony may explain

an alleged child victim’s behavior, conclusory opinions about

the truthfulness or believability of the alleged victim based on

that behavior is inadmissible:

[W]hile expert testimony explaining “seemingly bizarre” behavior of child sexual abuse victims is helpful to the jury and should be admitted, conclusory opinions that abuse did occur and that the child victim’s report of abuse is truthful and believable is of no assistance to the jury, and therefore, should not be admitted.

Id. Batangan stressed that where “the expert’s opinion is the

same as directly opining on the truthfulness of the complaining

witness, . . . such testimony invades the province of the jury.”

Id. at 559, 799 P.2d at 52 (cleaned up).

That Batangan was a criminal sexual assault case does not

change how the rules of evidence operate in family court. We

recognize the broad scope of information considered in family

court proceedings. See In re Doe, 109 Hawaiʻi 399, 411, 126 P.3d

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1086, 1098 (2006) (“Where the best interests of a child is of

paramount importance, consideration of all relevant evidence

becomes a critical duty of the court in making a decision

regarding custody and visitation.”).

In re ASK held, though, that while the best interest

factors under HRS § 571-46(b) allow “other relevant evidence,”

the rules of evidence still “confine the family court.” 152

Hawaiʻi at 127, 522 P.3d at 274. We also held that “within this

typical [family court] trial framework, there are no statutory

presumptions, no ‘super-factors,’ and no evidence that deserves

automatic preferential treatment.” Id.

We hold that the family court did not err in excluding

Nurse Baumstark and Psychologist Riggs’ expert testimony as to

whether the children were credible. Per Batangan, HRE Rule 702

precludes this type of expert testimony. 71 Haw. at 559, 799

P.2d at 52. While “expert testimony explaining ‘seemingly

bizarre’ behavior of child sex abuse victims is helpful to the

[fact-finder] and should be admitted, conclusory opinions that

abuse did occur and that the child victim’s report of abuse is

truthful and believable is of no assistance to the [fact-

finder], and therefore, should not be admitted.” Id.

Mother’s counsel asked expert witness Nurse Baumstark,

“[D]o you have any reason not to believe this child when he told

you what his father did?” Because Mother’s counsel asked Nurse

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Baumstark directly whether she believed Jack, this testimony is

inadmissible per HRE Rule 702 and Batangan. See 71 Haw. at 559,

799 P.2d at 52. The court did not err in excluding Nurse

Baumstark’s testimony on Jack’s credibility. See id.

The family court also properly excluded the credibility

questions Mother posed to expert witness Psychologist Riggs.

Mother’s counsel asked Psychologist Riggs: “Is it your

experience that very, very young children would repeat the same

thing over and over again in their disclosures?” Riggs

responded, “Yes.” Standing alone, Psychologist Riggs’s

testimony that “very, very young children . . . repeat the same

thing over and over again in their disclosures,” appears to

explain the children’s “seemingly bizarre” behavior, and is

admissible. See id. Father also did not object to this

statement.

Mother then asked Psychologist Riggs, “Is that suspicious

to you or is that what you would consider to be a normal

response?” Father objected. We hold that the court properly

sustained his objection. Asking whether that behavior is a

“normal” or “suspicious” prompted Riggs to opine on whether the

children were believable. See id. Thus, we hold that the

family court properly excluded Psychologist Riggs’ testimony

regarding the children’s credibility. See id.

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Detective Satterfield and SW Armstrong were not classified

as expert witnesses, and thus served as fact witnesses. We hold

that Batangan also applies to credibility testimony by non-

expert witnesses.

In re Doe held that the family court erred in admitting a

teacher’s lay opinion evidence that the complaining witness

child “wasn’t lying” about sexual abuse by a juvenile defendant.

70 Haw. at 35, 40, 761 P.2d at 301, 304. The prosecution

elicited the teacher’s testimony to bolster the veracity of a

hearsay statement regarding what the child had said. Id. at 40,

761 P.2d at 304. The court held that the family court should

not have admitted the teacher’s lay opinion. Id.

In re Doe distinguished its facts from State v. Kim, 64

Haw. 598, 645 P.2d 1330 (1982), where defense counsel had cast

doubt on a thirteen-year-old complaining witness’ credibility

during cross-examination. It noted that State v. Castro, 69

Haw. 633, 756 P.2d 1033 (1988) held that “[if State v. Kim] is

perceived as precedent for the allowance generally of expert

testimony on credibility, the perception is erroneous.” In re

Doe, 70 Haw. at 40, 761 P.2d at 304. “And obviously,” the court

said, “Kim does not stand for the proposition that lay testimony

on credibility is generally allowed.” Id.

Thus, we hold that lay testimony regarding a child’s

credibility regarding sexual assault allegations is generally

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inadmissible. See id.; see also State v. Ryan, 112 Hawaiʻi 136,

140, 144 P.3d 584, 588 (App. 2006) (“[I]t is generally improper

for a witness to express an opinion on the truthfulness of a

complaining witness’s allegations.”). And to repeat, the

evidentiary rules apply with equal force in family court. In re

ASK, 152 Hawaiʻi at 127, 522 P.3d at 274.

Here, the family court did not err in precluding SW

Armstrong’s non-expert testimony regarding the children’s

credibility. Mother actually objected to SW Armstrong’s

testimony. Yet Mother now challenges the family court’s

exclusion of Armstrong’s testimony. After urging the court to

keep evidence out, Mother cannot argue the court should’ve

allowed the testimony. In any event, because Father’s counsel

asked Armstrong if she believed that the children were abused

based on her review of CJC forensic interviews, the family court

properly excluded the testimony. See Batangan, 71 Haw. at 559,

799 P.2d at 52.

Last, we hold that the court did not err in excluding fact

witness Detective Satterfield’s testimony. Mother’s counsel

asked Detective Satterfield, “So do you believe these children

were sexually abused?” Because Mother’s counsel asked Detective

Satterfield if he believed the children’s disclosures, we hold

that the family court properly sustained Father’s counsel’s

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objection to this testimony per Batangan. 71 Haw. at 559, 799

Even if the court had erred in excluding these expert and

fact witness’ opinions regarding the children’s credibility, we

hold that exclusion of their testimony constitutes harmless

error. The credibility of the children is ultimately within the

province of the fact-finder. See In re Doe, 95 Hawaiʻi 183, 190,

20 P.3d 616, 623 (2001). The witness’ opinion on the

credibility of the children does not aid the fact-finder in

reaching their independent credibility determination –

especially a judge conducting a bench trial. Witnesses opining

on the credibility of in-court or out-of-court statements by

others invades the fact-finder’s role in our justice system.

Thus, we hold that the exclusion of this opinion testimony, even

if in error, was harmless.

2. The family court did not err in excluding fact witness Dr. Goldberg’s testimony regarding her interview with the children

Mother argues that the family court erred in sustaining

Father’s hearsay objections to Dr. Goldberg’s testimony

regarding statements by the children during play therapy. We

hold that the court did not err in excluding Dr. Goldberg’s

testimony. Even if it had, the error was harmless.

Mother called Dr. Goldberg as a fact witness. At trial,

Mother asked Dr. Goldberg to testify as to what she observed

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while providing therapy to the children. Father objected to any

observations regarding statements the children made as hearsay,

but did not object to “visual observations.”

Mother cited the HRE Rule 803(b)(24) hearsay exception.

She stated “[i]t’s well established that reliable trusted

sources are allowed to speak on behalf of the children that have

been abused.”

HRE Rule 803(b)(24) is a catch-all provision for available

declarants that allows statements with “equivalent

circumstantial guarantees of trustworthiness” if the court

determines that “(A) the statement is more probative on the

point for which it is offered than any other evidence which the

proponent can procure through reasonable efforts, and (B) the

general purposes of these rules and the interests of justice

will best be served by admission of the statement into

evidence.” HRE Rule 803(b)(24). A statement is only admissible

under this exception if the proponent makes the statement known

to the adverse party in advance of trial, provides the adverse

party “with a fair opportunity to prepare to meet it,” and gives

advance notice of “the proponent’s intention to offer the

statement and the particulars of it[.]” Id.

Father argued that the pertinent evidentiary rule was HRE

804(b)(6). That rule applies to unavailable declarant children

under age sixteen who describe sexual contact or physical

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violence by another. HRE Rule 804(b)(6). The rule requires

“strong assurances of trustworthiness.” HRE Rule 804(b)(6).

Courts may examine, but are not limited to, factors such as the

age and mental condition of the declarant, spontaneity and

absence of suggestion, appropriateness of the language and

terminology of the statement given the child’s age, and lack of

motive to fabricate. Id.

The court sustained Father’s objection that because Mother

listed Dr. Goldberg as a fact witness, Father lacked sufficient

notice that Dr. Goldberg would be called as an expert witness.

The court allowed Mother to question Dr. Goldberg as a fact

witness - “based on her personal knowledge and not as an

expert.”

The appellate court applies the “right/wrong” standard of

review to questions pertaining to hearsay and hearsay

exceptions. Ortiz, 91 Hawaiʻi at 189-90, 981 P.2d at 1135-36.

The court properly excluded Dr. Goldberg’s testimony.

We note that the family court’s cited rule, HRE 803(a)(1), did

not apply to the evidentiary scenario at hand. The proffered

testimony involved a party’s child, not a party-opponent. Even

so, we hold that because Mother failed to provide adequate pre-

trial notice and did not lay a foundation for “equivalent

circumstantial guarantees of trustworthiness” under HRE Rule

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803(b)(24), the court properly excluded the testimony regarding

the children’s declarations.

It is undisputed that Dr. Goldberg’s testimony involves

hearsay: out-of-court statements (the children’s disclosures)

offered to prove the truth of the matter asserted (sex abuse).

See HRE Rule 802. Because Mother did not lay the proper

foundation for any hearsay exception, we hold that the court

properly excluded Dr. Goldberg’s testimony regarding the

children’s disclosures.

First, Mother failed to meet the procedural requirements of

HRE Rule 803(b)(24). See State v. Anger, 105 Hawaiʻi 423, 432

n.12, 98 P.3d 630, 639 n.12 (2004). Per HRE Rule 803(b)(24), a

party proffering a hearsay statement must “provide [the defense]

notice of its intention to employ the hearsay statement,

including the name and address of the declarant.” Id. If the

party provides sufficient pre-trial or pre-hearing notice, the

evidence “having equivalent circumstantial guarantees of

trustworthiness” may be admitted if “the court determines that

(A) the statement is more probative on the point for which it is

offered than any other evidence which the proponent can procure

through reasonable efforts, and (B) the general purposes of

these rules and the interests of justice will best be served by

admission of the statement into evidence.” HRE Rule 803(b)(24).

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While the purpose of the rule is to allow “a measure of

controlled flexibility in the judicial determination of what

evidence should be admissible under [HRE Rule 803] hearsay

exceptions[] . . . [t]he exception is not designed to open the

door widely for otherwise inadmissible evidence[.]” HRE Rule

803 cmt. Thus, “the requirement for prior notification to the

adverse party provides a protection against both excessive

liberalization [of this rule] and unfair surprise.” Id.

In Anger, the prosecution failed to meet the HRE Rule

803(b)(24) prior notification requirement. 105 Hawaiʻi at 432

n.12, 98 P.3d at 639 n.12. The prosecution called a police

officer to testify about a physician’s statement to the officer.

Id. But because the prosecution failed to notify the defendant

that the officer would testify about the physician’s statement,

the court held, the notice requirement was not met. Id. The

hearsay was inadmissible. Id.

Here, Mother was required to provide Father with notice of

the statement regarding the children’s disclosures in advance of

trial, and to provide Father “with a fair opportunity to prepare

to meet it.” HRE Rule 803(b)(24). Mother didn’t. She listed

“Margaret Goldberg” as a fact witness, but did not list Dr.

Goldberg’s credentials or the scope of her testimony. Thus, we

hold that the family court did not err in sustaining Father’s

objection to Dr. Goldberg’s hearsay testimony.

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We also hold that even if Mother had complied with the

notice requirement, she failed to satisfy HRE 803(b)(24)’s other

conditions. The hearsay did not have “equivalent circumstantial

guarantees of trustworthiness.” See HRE Rule 803(b)(24). The

children’s statements made to Dr. Goldberg were not “more

probative on the point for which [they were] offered” than any

other evidence Mother procured, and the “interests of justice”

would not be served by admission of the statements into

evidence. Id.

First, Mother’s counsel conflated Dr. Goldberg’s

trustworthiness with the “guarantees of trustworthiness” of the

declarant’s statements. When given the chance to lay a

foundation, Mother’s counsel only stated that Dr. Goldberg is a

“professional,” and a “trusted reliable source.” Mother’s

counsel did not tell the court why the declarant children’s

statements themselves possessed “equivalent circumstantial

guarantees of trustworthiness.” See HRE Rule 803(b)(24); State

v. Austin, 143 Hawaiʻi 18, 35, 422 P.3d 18, 35 (2018) (no

“circumstantial guarantees of trustworthiness” when the witness

was unable to provide enough detail to the sketch artist, the

witness’ own sketch was devoid of any detail, and the sketch was

the product of a “feeling” that compelled the witness to draw

the sketch).

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The children were ages three and five when they made their

statements. Nurse Baumstark and CE Shiner reported that the

children were too young to be interviewed. Dr. Goldberg told

Detective Satterfield that their speech was “hard to

understand.” By the time the children made disclosures to Dr.

Goldberg, they had already undergone multiple interviews and

meetings with professionals regarding alleged sexual assault by

Father: the June 29, 2021 CJC interview, an emergency room visit

where Mother requested sexual assault examinations, examinations

by Nurse Baumstark involving physical and verbal interviews, and

a court custody evaluator visit with the children. Mother had

also filmed herself only two months before the disclosures

“leading” the children to allege abuse by Father. The children

also continuously lived with Mother and Maternal Grandmother

after Maternal Grandmother contacted CWS in April 2021, and

Mother reported alleged abuse to MPD in June 2021. Thus, the

circumstances reveal influence and suggestibility by Mother, and

therefore, the declarations lack guarantees of trustworthiness

justifying admission. See HRE Rule 803(b)(24).

Second, the children’s statements were not “more probative

on the point for which it is offered than any other evidence

which the proponent can procure through reasonable efforts.”

See HRE Rule 803(b)(24). Mother’s counsel alleged that Dr.

Goldberg’s testimony would provide “more details of sex abuse

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than from disclosures to other professionals.” Mother’s counsel

did not establish why the proffered evidence would be “more

probative” as to whether Father assaulted the children than the

considerable evidence already received. The record includes

substantial evidence regarding the children’s disclosures that

Father touched their private parts. The hazy proffer of “more

details of sex abuse” was offered to boost the veracity of the

children’s alleged statements. Because of the children’s young

ages, and because significant evidence already suggested Mother

coached the children, though, we conclude that this evidence

would not be more probative than existing evidence. Thus, we

conclude that the evidence offered slim probative value compared

to the ample evidence already procured by Mother. See HRE Rule

803(b)(24).

Last, the hearsay was cumulative. Admitting testimony

about the children’s disclosures would not serve the “interests

of justice” because the parties already stipulated to pages of

evidence concerning the children’s disclosures. The disclosures

alleged by Mother (and at times witnessed by reporters) are

documented in admitted reports by the sexual assault nurse

examiner, CWS social workers, court-appointed supervised visit

monitor, court-appointed custody evaluator, and Maui Police

Department reports. The CJC interviews where the children made

disclosures were admitted as evidence and reviewed by the court.

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The parties also stipulated to admission of documents that

included Detective Satterfield’s interview with Dr. Goldberg

where she discussed the disclosures. Because the record is

stuffed with descriptions of the children’s disclosures, we hold

that the interests of justice did not require admission of Dr.

Goldberg’s testimony. See HRE Rule 803(b)(24).

In sum, we conclude that because Mother failed to meet the

notice requirement, the court did not err in excluding Dr.

Goldberg’s testimony. We also conclude that even if Mother had

followed the evidence rule, the children’s statements did not

demonstrate “equivalent circumstantial guarantees of

trustworthiness,” and HRE Rule 803(b)(24)’s other conditions.

The court also did not err in sustaining Father’s objection

under HRE Rule 804(b)(6). Mother did not try to lay a

foundation under HRE Rule 804(b)(6) even though she said she

would. Mother argues in her cert application that she also

cited HRE Rule 804(b)(6). In fact, Father raised HRE Rule

804(b)(6) during the exchange with the court. Mother’s counsel

responded to Father’s statement that “[s]he hasn’t provided a

foundation for any of those things [under HRE Rule 804(b)(6)]”

with, “I’m happy to do that, your Honor, if the Court will allow

me time.” However, when granted the opportunity to establish a

foundation, Mother’s counsel mentioned Goldberg’s

trustworthiness. Counsel stated that “as a professional, we

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would say that [Dr. Goldberg] is a trusted reliable source and

should be able to repeat what the children said.” This thin

foundation hardly references the multiple requirements and

factors under HRE Rule 804(b)(6)’s preconditions for

admissibility.

The legislature added the HRE Rule 804(b)(6) hearsay

exception for child declarants in 1993. See 1993 Haw. Sess.

Laws Act 198, § 1, at 304. “Explicit in [HRE 804(b)(6)] . . .

is the threshold requirement of showing a declarant’s

unavailability[.]” State v. Apilando, 79 Hawaiʻi 128, 141, 900

P.2d 135, 148 (1995). “[It] also provides that a child’s

statement is admissible only ‘if the court determines that the

time, content, and circumstances of the statement provide strong

assurances of trustworthiness.’” Id. (quoting HRE 804(b)(6)).

The rule’s supplemental commentary explains that the Hawaiʻi

Supreme Court’s Final Report of the Committee on Hawaiʻi Rules of

Evidence emphasized the importance of a showing of

unavailability, followed by “strong assurances of

trustworthiness.”

What is needed is a hearsay exception that will provide sufficient safeguards to allow for receipt of reliable hearsay statements in cases where child declarants become “unavailable” through inability to remember or to communicate. . . . The committee has carefully constructed proposed Rule 804(b)(6) with Justice O’Connor’s Idaho v. Wright [497 U.S. 805 (1990)] analysis in mind. We have specified the relevant circumstances . . . and have articulated the bottom-line reliability criterion: “[T]hat the time, content, and circumstances of the statement provide strong assurances of trustworthiness.”

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HRE Rule 804 supp. cmt. (quoting Hawaiʻi Supreme Court, Final

Report of the Committee on Hawaiʻi Rules of Evidence 37-38

(1991)).

Here, Mother did not establish Jack’s unavailability with

regard to Dr. Goldberg’s testimony. See HRE Rule 804(b)(6). We

acknowledge that unavailability does not have the same

constitutional connotations in a family court proceeding as it

does during a criminal trial. See Apilando, 79 Hawaiʻi at 141,

900 P.2d at 148 (allowing hearsay testimony when a declarant is

available violates a defendant’s right to confrontation).

Because Jack was around age six and Grace was around age four at

the time of trial, they were likely unavailable. See HRE Rule

601.

Still, because Mother made no attempt to establish any of

the other HRE 804(b)(6) requirements, we hold that Mother did

not satisfy HRE Rule 804(b)(6). Mother did not lay a foundation

for why the children’s age and mental condition, the

appropriateness of the terminology used, or the time between the

alleged assault and the declarations, for example, produced

“strong assurances of trustworthiness.” See HRE Rule 804(b)(6).

In her interview with Detective Satterfield, Dr. Goldberg

confirmed the disclosures, noting that for both children, “[w]e

were building [with toys] and [the disclosure] kind of came out

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of nowhere.” Jack stated that Father put his finger in his

butt, and Grace said that Father put his finger in her butt and

vagina. Dr. Goldberg said she asked Jack if it hurt (he said

“yes”), and whether it was a long time ago (he said “no”), then

“left it.” She only asked Grace if it hurt (yes), and again

“left it.” During the police interview, Dr. Goldberg did not

describe anything else about the disclosures, such as

information about when or where the alleged abuse occurred.

Mother brought the children to Dr. Goldberg at her

attorney’s recommendation. Dr. Goldberg also told Detective

Satterfield that she asked Mother if she had told the children

what to tell her during therapy. Dr. Goldberg reported she “was

kind of worried about that.” Mother told Dr. Goldberg that she

only told the children “they could tell [Dr. Golberg] anything,”

but that she didn’t tell them what to say.

Under the circumstances, the statements by children do not

have HRE Rule 804(b)(6)’s “strong assurances of

trustworthiness.” The record suggests that Mother induced the

children to make disclosures. Since Mother made the children

participate in videos that informed others about instances of

sexual assault, and Mother and her parents questioned the

children about sexual abuse throughout the hotly-contested

proceedings, there may be suggestibility. See HRE Rule

804(b)(6). As a result, the young children may have felt

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pressure to describe sexual assault. See id. That Dr. Goldberg

felt she had to ask whether Mother coached the children also

decreases the trustworthiness of these statements.

Even if the statements were made seemingly spontaneously to

Dr. Goldberg during play therapy (which Mother did not expressly

assert at trial), Mother did not argue that the children’s young

ages or developmental capacity supported the reliability of

those statements, or that Jack fully understood temporal

concepts like recency to answer Dr. Goldberg’s questions

accurately.

Further, the consistent questioning of the children

throughout these proceedings erodes the trustworthiness of these

late-in-the-game “spontaneous” disclosures. To repeat, by the

time the children made disclosures to Dr. Goldberg, they had

already undergone multiple interviews and visits with

professionals. These included a CJC interview, an emergency

room visit where Mother requested sexual assault examinations,

examinations by Nurse Baumstark involving physical examination

of the children’s privates, and a court custody evaluator visit

with the children. The clear emphasis on the children “sharing”

specific types of information with professionals again decreases

the trustworthiness of the children’s statements made to Dr.

Goldberg. See HRE Rule 804(b)(6).

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Thus, under the entire circumstances and the evidence

presented to the court at trial, we conclude that the family

court properly determined that the hearsay statements do not

have “strong assurances of trustworthiness.” See HRE Rule

804(b)(6) (emphasis added).

We hold that the court did not err in excluding Dr.

Goldberg’s testimony regarding the disclosures per HRE Rule

804(b)(6).

Last, we hold that even if the family court had erred, the

omission of Dr. Goldberg’s testimony constituted harmless error.

In re Doe held that “[t]he exclusion of testimony is harmless

where the same evidence is established through other means.”

100 Hawaiʻi at 346 n.23, 60 P.3d at 296 n.23. Dr. Goldberg’s

interview with Detective Satterfield regarding the children’s

disclosures to her was admitted into evidence as part of Exhibit

2. The parties stipulated to admission of that exhibit. And as

mentioned, there was substantial evidence already before the

court regarding the children’s disclosures. Thus, we hold that

omission of Dr. Goldberg’s testimony regarding the children’s

disclosures constitutes harmless error. See id.

B. The family court did not abuse its discretion in awarding sole legal and physical custody to Father and allowing Father to return to Utah with the children

We hold that the family court did not abuse its

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discretion by concluding that the children’s placement with

Father in Utah served the best interest of the children.

The family court possesses wide discretion, and its

decisions are evaluated under the “abuse of discretion”

standard. DJ v. CJ, 147 Hawaiʻi 2, 17 n.16, 464 P.3d 790, 805

n.16 (2020) (Despite the “great deference” granted to family

courts in making custody decisions and in determining the bests

interests of the child, “[t]he applicable standard of review is

still ‘abuse of discretion.’”).

Family courts are tasked with making tough decisions

regarding evidence, credibility, and the best interest of the

child. Judges make these calls after eyeballing and listening

to witnesses. Credibility determinations are for the trial

court, not appellate courts reading transcripts away from the

live give-and-take action of the courtroom. See In re Doe, 95

Hawaiʻi at 190, 20 P.3d at 623. Fact-intensive, on-the-ground

decisions are not generally second guessed on appeal.

“It is well established that a family court abuses its

discretion where ‘(1) the family court disregarded rules or

principles of law or practice to the substantial detriment of a

party litigant; (2) the family court failed to exercise its

equitable discretion; or (3) the family court’s decision clearly

exceeds the bounds of reason.’” Kakinami v. Kakinami, 127

Hawaiʻi 126, 155-56, 276 P.3d 695, 724-25 (2012) (Acoba, J.,

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concurring and dissenting). Further, “[i]t is well-settled that

an appellate court will not pass upon issues dependent upon the

credibility of witnesses and the weight of the evidence; this is

the province of the trier of fact.” In re Doe, 95 Hawaiʻi at

190, 20 P.3d at 623.

A family court’s findings of fact are reviewed under the

“clearly erroneous” standard. Fisher, 111 Hawaiʻi at 46, 137

P.3d at 360. “A FOF is clearly erroneous when (1) the record

lacks substantial evidence to support the finding, or (2)

despite substantial evidence in support of the finding, the

appellate court is nonetheless left with a definite and firm

conviction that a mistake has been made. ‘Substantial evidence’

is credible evidence which is of sufficient quality and

probative value to enable a person of reasonable caution to

support a conclusion.” Id.

“Hawaiʻi courts have consistently adhered to the best

interests of the child standard as paramount when considering

the issue of custody.” Id. at 50, 137 P.3d at 364. HRS § 571-

46(b) provides sixteen factors the court must consider in

determining the best interests of a child. HRS § 571-46(b).

Factors relevant to this case include: (1) Any history of sexual

or physical abuse of a child by a parent (HRS § 571-46(b)(1));

(2) The overall quality of the parent-child relationship (HRS

§ 571-46(b)(3)); (3) The history of caregiving or parenting by

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each parent prior and subsequent to a marital or other type of

separation (HRS § 571-46(b)(4)); (4) The physical health needs

of the child (HRS § 571-46(b)(6)); (5) Each parent’s actions

connections through family events and activities (HRS § 571-

46(b)(11)); (6) Each parent’s actions demonstrating that they

separate the child’s needs from the parent’s needs (HRS § 571-

46(b)(12)); and (7) Any evidence of past or current drug or

alcohol abuse by a parent (HRS § 571-46(b)(13)).

In assessing these factors, “the family court is granted

broad discretion to weigh the various factors involved, with no

single factor being given presumptive paramount weight, in

determining whether the standard has been met.” Fisher, 111

Hawaiʻi at 50, 137 P.3d at 364. The court is also not limited to

the factors enumerated in HRS § 571-46(b). HRS § 571-46(b)

(“the court shall consider, but not be limited to, the following

[HRS § 571-46(b) factors]”).

In its conclusions of law, the family court listed all

sixteen of the HRS § 571-46(b) best interest of the child

factors. The court did not expressly cite these factors in its

FOFs, or describe in detail which HRS § 571-46(b) factors

supported each FOF. But our review of the record shows that the

court sufficiently assessed the statutory factors.

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Because we review the family court’s custody order for

abuse of discretion, as long as we can track its decision-

making, we do not require a family court to take a hyper-

technical or artificial approach and match each FOF and COL with

a HRS § 571-46(b) factor. As Fisher held, “the family court is

given much leeway in its examination of the reports concerning a

child’s care, custody, and welfare, and its conclusions in this

regard, if supported by the record and not clearly erroneous,

must stand on appeal.” 111 Hawaiʻi at 46, 137 P.3d at 360.

We hold that the FOFs and COLs clearly support a proper

evaluation of HRS § 571-46(b)’s factors. Thus, the family court

did not abuse its discretion in awarding Father sole custody and

allowing him to move with the children back to Utah.

The family court concluded:

21. Father is a fit and proper parent who can provide a stable, safe and wholesome home for the minor children in Utah.

22. Mother is not present[ly] a fit or proper parent who can provide a stable, safe and wholesome home for the minor children.

23. Father’s relocation plan is realistic, credible and sustainable.

24. Mother’s conduct demonstrates she is unable to act in the best interest of the minor children and that unsupervised visitation of the children would presently be detrimental to their best interest.

25. Mother’s actions demonstrate that either she is unable to separate her needs from the minor children or she is unable to protect the children from her parents’ needs and wants.

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Consequently, the court granted Father sole custody and

allowed him to relocate with the children:

(1) that Father have sole legal and physical custody of the minor children,

(2) that Father and minor children be permitted to relocate and return to the State of Utah, provided that he shall notify the Court and Mother within thirty days of this order if Father and the minor children will not be relocating and returning to the State of Utah,

(3) that Mother have reasonable supervised visitation with the children – in person or through telephone, computer videotelephony or other reasonable means – as agreed upon by the parties, or as further ordered by the Court.

(6) That the Amended Order for Protection filed December 8, 2021 in [Mother] obo Minor Child v. [Father], FC-DA No. 21-1-0510 be dissolved, and

(7) That each party shall be responsible for his or her own costs and attorney’s fees.

We hold that the family court properly ruled. The court’s

extensive findings support its conclusion that Father’s custody

and relocation serves the best interest of Jack and Grace.

Thus, the court did not abuse its discretion.

1. The record supports the family court’s findings that there was no confirmed sexual abuse by Father

The record supports the family court’s finding that Father

did not sexually abuse his children. The family court’s

findings thus support that per HRS § 571-46(b)(1) (“[a]ny

history of sexual or physical abuse of a child by a parent”),

Mother’s sexual abuse accusations against Father do not weigh

against Father’s custody of the children.

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Father has always denied any sexual touching or abuse of

his children - to social workers, the police, anyone who asked.

He also testified at trial that he has never sexually assaulted

his children. While not saying so explicitly, the family

court’s disposition implicitly found Father credible.

Mother informed CWS that she initially did not believe that

Father had abused the children. After Maternal Grandmother

filed a report with CWS, Mother acknowledged that she told SW

Armstrong that she “felt her mom had ‘jumped the gun’ and she

had no concerns regarding [Father’s] care of them. Mother was

offered CJC interviews for [the children] as well as services

but she declined.”

Mother first began alleging sexual abuse after the court

did not rule in her favor. On June 3, 2021, the family court

declined to award Mother sole legal and physical custody. Ten

days later, on June 13, 2021, Mother called the Maui Police

Department and claimed that the children were “sexually

assaulted by their father” two months before, in April 2021.

Mother’s interview with Maui police was odd. The officer

reported that Mother changed her statements over the course of

the interview, laughed inappropriately, and failed to make eye

contact.

Two hours later, after the police had alerted him to the

accusation, Father waived his constitutional rights and was

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questioned by the police. He denied sexually touching his

The children initially made no disclosures. On June 29,

2021, the Children’s Justice Center interviewed the children,

but neither child disclosed instances of sexual abuse.

The family court remarked in FOF 90 that it had reviewed

the video recordings of both CJC interviews. The court placed

on the record that there were no disclosures in those interviews

pertaining to inappropriate sexual touching by Father.

According to SW Reinecke’s report, Grace’s “speech [during the

interview] was mostly ineligible[,] [sic] making her statements

difficult to understand.”

She talked about taking baths, sleeping with her daddy and playing; not in any specified order. Of pertinence was Grace’s statement “daddy help when go poop . . . wipe butt; my butt hurt”. She is wiped with “paper”. Asked who does she sleep with she responded “daddy”. Who live with? She responded “daddy”. Asked who she showers with, she responded “daddy and Jack.”

The family court had also ordered the Department of Human

Services to investigate the allegations. CWS’ July 2021 report

to the court found neither sexual abuse nor a threat of sexual

abuse by Father.

As the proceedings progressed, Mother appeared to prompt

the children to make disclosures. The CWS report stated that

Mother claimed she had “various audio and video recording of

kids making statements about what their dad did sexually to

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them. [Mother] stated because of the kids’ ages, information

comes out in bits. It was difficult for her to get it out of

Jack but Grace told her ‘daddy touched my butt’ and Grace showed

her finger inserting anus and vagina. That both kids were

crying saying their butts hurt.” Per CWS, two videos given to

CWS by Mother were “difficult to understand.” And they were

“highly suggestible and leading.” SW Reinecke stated she

“observed Jack saying ‘they trust teenagers’” and “[Mother]

saying to child ‘cops don’t believe kids, they only believe[]

adults.’”

CWS did not confirm actual abuse or the threat of abuse by

Father. CWS reported that there was “too much ambiguity” as to

whether the children were abused, partly because “[t]he children

have also been exposed to Mother’s boyfriends, of whom no

information is given with exception that there ha[s] been

exposure to domestic violence.” As for other potential causes,

CWS stated that Maternal Grandmother acknowledged that the

children had pinworms, but that they were only treated with

over-the-counter medication. CWS recommended the children

undergo medical physicals, and have the “pinworm issue[]

verified and treated.” CWS social worker Reinecke later

testified during trial that she thought the pinworms “would

impact [the children] digging their butts,” so she recommended

medical attention to rule out natural health issues.

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Last, while a subsequent October 29, 2021 report did

confirm the threat of sexual abuse by Father, CWS clarified that

threat of sex abuse only means “a possibility of that harm

happening.” “[A]ctual abuse is that it actually occurred, that

we have evidence to confirm actual sex abuse.” When asked

whether the term “threat” was a synonym for a “possibility” of

sex abuse, Armstrong explained, “there is the threat that

[Father] may have or may in the future abuse his children in a

sexual manner, so that’s the threat. But we have no proof that

he actually did anything so I can’t confirm sex abuse.”

(Emphasis added.)

We hold that the record supports the court’s conclusion

that there was no evidence of abuse by Father. We also hold

that while the court did not expressly reference HRS § 571-

46(b)(1) as applied to these facts, it is clear that the court

considered this factor at length – nearly forty findings of

fact. Thus, the court did not err.

2. The court did not err in concluding that Mother is unable to separate her children’s needs from both Mother’s and Mother’s parents’ needs

The record reveals that the court did not abuse its

discretion in concluding that “Mother’s actions demonstrate that

either she is unable to separate her needs from the minor

children or she is unable to protect the children from her

parents’ needs and wants.” The family court’s conclusion that

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Mother is unable to separate her needs (and her own parents’

needs) from her children’s needs shows that the court considered

HRS § 571-46(b)(12) – “[e]ach parent’s actions demonstrating

that they separate the child’s needs from the parent’s needs.”

HRS § 571-46(b)(12). This conclusion is supported by the

court’s findings and the record, and thus, the family court did

not abuse its discretion.

The court found that “[t]here is substantial, credible

evidence that Mother has coached the minor children to make

statements regarding inappropriate touching by Father which when

reported to third parties would lead a reasonable person to

believe that Father had sexually abused the children even where

he had not.” It also found that CWS reported that Mother’s

recordings of her questioning the children was “highly

suggestive and leading.” The court concluded that “Mother’s

actions demonstrate that either she is unable to separate her

needs from the minor children or she is unable to protect the

children from her parents’ needs and wants.”

The evidence shows that the videos Mother filmed were

leading or created only to boost Mother’s allegations. The

dubious nature of Mother’s recordings caused law enforcement,

the custody evaluator, and social workers to express concern.

CWS social worker Reinecke testified that the questions Mother

posed to children in the videos Mother submitted to CWS were

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“leading” and “not neutral.” In August 2021, Detective

Satterfield reported that Mother sent him seven videos of Mother

interviewing the children. The detective warned Mother to stop

taking videos and interviewing the children on her own. She was

directed not to send more videos. Custody evaluator Shiner also

reported that SW Reinecke told her that she “wonder[s] about

[Mother’s] mental health. In the videos and audios that she

submitted, she’s extremely leading.”

Father had concerns of his own. SW Armstrong stated in her

report that “[Father] is concerned that someone might be

touching his kids and reporting that it is him” and that “the

children may be being coached.”

Evidence also suggests that because the children’s

disclosures to Dr. Goldberg “came out of nowhere,” the children

were told to make those statements during therapy. Dr. Goldberg

told Detective Satterfield that for both children, “[w]e were

building and it kind of came out of nowhere.”

Further, the court found that “Dr. Goldberg expressed

concern, during cross-examination, that Mother had attempted to

direct Dr. Goldberg to do things that Dr. Goldberg did not agree

to do and that Mother had a tendency to say inappropriate things

at times.” Dr. Goldberg had reported to Detective Satterfield

that Mother “seems to sometimes think that she knows what people

should do, like me and tell me what to do and I don’t like

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that.” She also reported that Mother “just seems to say the

wrong thing at certain times and um and I don’t know. I can’t

quite put my finger on it.” On cross-examination, Dr. Goldberg

confirmed her statements. Dr. Goldberg’s allusion to Mother

telling a professional what conclusions to reach, or what action

to take, supports the court’s conclusion that Mother coached the

minor children to make certain statements to Dr. Goldberg.

The record also supports that the children may have been

coached to disclose specific statements to their supervised

visit monitor, Ms. Przeciechowska. During a supervised visit in

November 2021, “[t]he monitor asked [the children] if they were

comfortable during the visit. Both children said ‘yes,’ and

Grace commented: ‘Dada touched my butt.’ The monitor asked the

child if this happened today during the visit, and the child

said, ‘at the farm.’” On December 18, 2021, “[w]hile the

monitor and the children were waiting for the father’s arrival,

Grace said her ‘Dada’ touched her butt yesterday. Jack, who

overheard his sister’s statement, commented, ‘No, at the farm.’”

Last, on December 22, 2021, “[w]hile the father was reading a

book aloud to Jack [during a supervised visit], Grace approached

the monitor and said: ‘[Ms. Przeciechowska], my dada touched my

butt,’ the monitor didn’t make a comment, and Grace repeated,

‘My dada touched my butt.’ The monitor looked at the child and

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said, ‘Grace, I appreciate that you want to share this with me,’

and Grace commented: ‘My mom told me.’” (Emphasis added.)

Last, Nurse Baumstark testified that before her examination

of the children, when she gathered information from Mother,

Mother remained about five or ten feet away from where the

children were playing with another staff member in the

examination room. The nurse conceded that pre-examination

information she obtained from Mother about the purported

disclosures may have been overheard by the children. Later,

during the examination, Jack reported, “dad put his finger in my

butt.” This statement was not made in response to any question

posed by Baumstark. Again, while not conclusive, this evidence

supports FOF 100 finding that Mother “coached the minor children

to make statements regarding inappropriate touching by Father

which when reported to third parties would lead a reasonable

person to believe that Father had sexually abused the children

even where he had not.”

The family court therefore did not abuse its discretion in

finding “substantial, credible evidence” that Mother coached the

children to make statements suggesting inappropriate touching by

Father.

The record also supports the court’s finding that “Mother’s

parents appear to exert a level of unreasonable influence and

undue control over Mother including her parental decision-making

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regarding the minor children and her child-rearing actions.” CE

Shiner reported that Mother characterized Maternal Grandmother’s

independent April 2021 report to CWS as “going overboard,” and

that “[Father] told [Mother] he wanted to take [the] kids back

to Utah but Maternal Grandma blocked it.” SW Reinecke also

reported that regarding Maternal Grandmother’s April 2021 report

to CWS, “[Mother] acknowledged she met with DHS SW Leslie

Armstrong and did share she felt her mom had ‘jumped the gun’

[in telling Father he ‘could not come around’ and calling CPS on

Father] and she had no concerns regarding [Father’s] care of

them.” Many of the reports of alleged inappropriate behavior by

the children have also been reported to Mother by Maternal

Grandmother.

The family court also found that “Mother’s parents have

consistently taken the position and have taken action in

furtherance of obtaining custody of the minor children [sic]

Mother and Father should give custody of the children.” Mother

reported to SW Reinecke that in March 2021, “[t]here was a

‘small’ confrontation between Maternal Grandma and [Father,]

with Maternal Grandma telling Father he could not come around.

[Mother] shared she thought maybe her mom was being

‘vindictive’ . . . . Maternal Grandma then called CPS on

[Father.]” Mother disputed Maternal Grandmother’s abuse claims

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at the time, and felt that Maternal Grandmother had “jumped the

gun,” and that she “was going overboard.”

During the custody proceedings, Maternal Grandmother

suggested to CE Shiner that the children should remain in the

Maternal Grandparents’ home. “The kids have lived in our house,

with [Mother], their entire life,” she told CE Shiner. “How

could [Father] be the one who gets primary custody?” Even

though eventually “[Mother] would have her own house,” Maternal

Grandmother said, “[t]hey’ve all been living with me and my

husband most of the time [Mother and Father] were together.”

SW Armstrong reported that “Father believes [the sexual

abuse] allegations were started so that he would not get custody

of the children as the maternal grandparents want the children.”

CE Shiner reported that “[Father] is very concerned that Mother

has been making false allegations about him molesting the

children, and he thinks it may partly be due to [Maternal

Grandmother] wanting to have custody of the children, something

she has proposed multiple times since the children were born.”

Paternal Grandmother reported to CE Shiner that “[Maternal

Grandmother] misled [Father], she went to great lengths to

deceive him and his family about this [living] arrangement and

has asked on occasion for [Father] to sign his rights away so

[Maternal Grandmother] can raise [the children]. . . .

[Paternal Grandmother does not] think [Mother] or her parents

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will ever support [Father] having a healthy relationship with

his children.” Father also testified that he told Mother that

he wanted to take the children back to Utah partly because he

could then “see them every day and [he] can be their father

rather than [Maternal Grandmother] having them all the time.”

Thus, the record supports that Mother is unable to protect

her children from the Maternal Grandmother’s desire to gain

custody of the children and her interference with the children’s

relationship with Father.

Based on the foregoing, we hold that the family court

correctly concluded that Mother is unable to separate her needs

(and her own parents’ needs) from her children’s needs under HRS

§ 571-46(b)(12).

3. The record supports that Father is more secure in his sobriety than Mother

We conclude that the family court did not err in finding

that while both parties have a history of drug use, Father has

greater insight into addiction and is more stable and secure in

his sobriety than Mother. See HRS § 571-46(b)(13) (“[a]ny

evidence of past or current drug or alcohol abuse by a parent”).

First, the court found that Mother had misrepresented her

date of sobriety and had not definitively stated for the record

her sobriety start date. FOF 30 reads:

Mother has been a habitual drug user of opioids and methamphetamine but has been drug free since at least

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August, 2021. Mother reported to the custody evaluator in July, 2021, that she had been sober since April 10, 2020, but then admitted she had relapsed with her boyfriend in July, 2020. Her psychiatrist reported that she denied use of methamphetamines after June 2020. Mother did not definitely state her date of sobriety in the record.

FOF 30 is supported by the record.

The court also found that Mother was “uncomfortable” in

describing taking heroin and methamphetamine, which demonstrates

a developing “awareness” of her addiction and “the power of the

substances for which she has an addiction.” On the other hand,

the court found that Father was more candid, describing his

experience of using heroin and methamphetamine as “the best

feeling in the world.” “The Court [found] that both parents

have the likelihood of relapse. Based on the testimony and

evidence presented, Father has deeper and clearer insight into

his addiction, his present state as well as his history of drug

use.” Father told CE Shiner that he was “secure” in his

sobriety, and Paternal Grandmother testified that Father has

always been “very honest with [her] about even his fails as far

as drug use or substance abuse issues.” Further, “Father’s

housemate testified that he had not seen Father consume alcohol

since March, 2021 and had not seen him ingest any drugs.

Father’s employer also indicated that she would not tolerate any

drug use by Father.”

Thus, the court properly determined that Father has greater

insight into his addiction and sobriety and Mother, and that HRS

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§ 571-46(b)(13) weighed in favor of the court granting Father

4. The record supports the family court’s finding that Father has a positive, loving relationship with the children

Sufficient evidence supports that Father has a positive,

loving relationship with his children. Thus, the court did not

err in concluding that Father’s positive relationship with his

children under HRS § 571-46(b)(3) (“[t]he overall quality of the

parent-child relationship”) and HRS § 571-46(b)(7) (“emotional

needs of the child”) weighed in favor of Father’s sole custody

and relocation.

First, the family court found that “Father had several

supervised visits monitored by [a visit supervisor]. The

[s]upervisor reported that the visits demonstrated Father and

the children had normal and pleasant interactions and that the

minor children appeared to be comfortable around Father.” It

also found that “Father’s housemate and immediate supervisor

testified that Father was bonded with the minor children and

that the interactions were happy and normal.”

These findings are supported by the record. CE Shiner also

reported that “Father’s interactions with the children appeared

to be caring and playful, with him tending to their needs and

being appropriately protective,” and that “Father appears to be

a caring, nurturing parent, and the children appear comfortable

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with him.” Father’s co-worker testified that it was

“inspiring . . . [to] see how [Father] connects with his

children and goes above and beyond for [them]. It’s very

spectacular.” Father and Paternal Grandmother also testified

that the children are close with Father and love Father.

We disagree with the dissent’s recasting of Mother’s

appellate argument - that the family court erred because it

granted Father custody based solely on Mother’s misuse of the

protection from abuse process - to suggest that the court

ignored the children’s emotional needs when awarding custody.

Mother’s history of having informal primary custody does not

mean that she is better equipped than Father to meet the

children’s emotional needs. As discussed, the record supports

that Father had a positive relationship with both children, and

thus, he could meet their emotional needs in Utah. Conversely,

the record supports the court’s findings and conclusions

regarding Mother’s inability to separate her own needs from her

children’s needs, Mother’s minimal insight into her sobriety,

her history of exposing the children to an abusive boyfriend,

and her interference with Father’s relationship with his

children. The record supports that the court carefully

considered the statutory factors and did not abuse its

discretion in granting Father sole custody.

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5. Evidence suggests Mother does not provide adequate health care to support the physical health needs of the children

Evidence also supports that Father is better equipped to

support the physical health needs of the children. Mother had

failed to obtain health insurance or regular health care for the

children. See HRS § 571-46(b)(6) (“The physical health needs of

the child.”).

The record reflects that Mother ascribes to therapeutic

remedies, and did not seek proper pediatric care for the

children. In Maui, Mother worked from home part-time at

Maternal Grandmother’s company “Weed Steam Hawaii” (a weed

control company) as an office assistant, and earned $600 per

month and room and board. She also received $610 in Temporary

Assistance for Needy Families and $1,000 in food stamps. Given

the financial support from her parents, it is unlikely she

lacked funds to acquire insurance or health care for the

children. No other reason appears on the record for Mother’s

failure to acquire health care for the children between December

2019 (their move to Maui) and July 2021 (CWS’ report

recommending the children be seen by a pediatrician).

It was reported that the children may have reported buttock

pain because they had untreated pinworms. The family court

found that “[t]he minor children suffered from pinworm

infections that Mother did not have treated by a health care

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professional.” SW Reinecke reported that “[the children] do not

have medical coverage and have not been to any physician for

exams. Reportedly Mother and Maternal Grandma ascribe[] to

naturopathic medicine. Maternal Grandma relayed Mother stated

the kids had pinworms and were treated with over the counter

medication. It is unknown whether the treatment was successful

and condition resolved.” CE Shiner reported that “[Father] is

concerned that Mother has not been taking the children to

regular doctor visits, as she is ‘antidoctor,’” and that

“Father’s mother, says that Mother’s mother ‘has paid a doctor

to forge their immunization records to be able to enroll them in

school and daycare.’”

Per HRS § 571-46(b)(6), the court shall consider “[t]he

physical health needs of the child[ren].” Evidence shows that

Mother did not provide for the physical health needs of the

children, and thus supports the family court’s broader

conclusion that “Mother is not present[ly] a fit or proper

parent who can provide a stable, safe and wholesome home for the

minor children.”

6. Mother’s actions interfered with Father’s interactions with his children

The record suggests that because of Mother’s allegations of

child sexual abuse against Father and repeated interrogation of

her young children, Mother impacted Father’s visitation with the

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children and harmed Father’s relationship with his children.

See HRS § 571-46(b)(11) (each parent’s actions demonstrating

that they allow the child to maintain family connections through

family events and activities). The evidence showed that because

of Mother’s allegations, Father no longer wanted to visit the

children at Mother’s parents’ house. He also surreptitiously

audio recorded visits with his children because he feared more

false allegations.

The family court concluded that “[o]ne parent’s making of

unfounded allegations of child abuse against another parent

including by coaching a child to make false allegations of abuse

so as to cause the restriction or interference with the

visitation of the child by the other parent are acts so

inconsistent with the best interests of the child that it raises

a strong probability that the offending parent is unfit to act

as a custodial parent.”

As described above, evidence supports the family court’s

finding that Mother induced the children to make statements

suggesting sexual abuse by Father. Father testified that after

Mother fabricated the story about an alleged video of him

abusing the children in August 2020, he recorded his visits with

the children on his phone “to protect [himself] from these

allegations.” SW Armstrong also testified that Father shared

that he was recording his unsupervised visits.

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The family court also stated in FOF 101 that “[t]he court

is extremely concerned that the litigation of this proceeding,

the numerous evaluations, investigations and interviews to which

the children have been subjected, and the pressures brought to

bear on the children by Mother and her family have impaired the

minor children’s trust and confidence in the social institutions

designed to protect them from harm in addition to hav[ing]

alienated them from their Father.” (Emphasis added.)

Mother’s interference with the paternal relationship is

supported by the record. SW Reinecke reported that “[Father]

stated things just started getting worse and [Maternal

Grandmother] would come by and peek in the room with him and the

kids without knocking. He did not want to have visits at her

house anymore.”

Father testified that Jack seemed reluctant to visit with

him, because he believed “[the children] are being grilled and

asked questions by [M]other and therapist right after [Father’s]

visits accumulating to Jack not wanting to come and see [Father]

in the first place.” SW Reinecke also reported that the

children stopped letting Father assist them with toileting and

bathing:

Due to things their mom and grandparents say to [the children], it makes it harder for [Father] to take care of them. Usually, after Jack poops, Father has him stand up so he (father) can better wipe him. Jack refused to stand up now so he (father) has to wipe him while he is sitting on potty. This has progressed to now, he has to leave

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bathroom when kids are using it. [Father] relayed he is scared to help kids with bathing and personal hygiene. He has not helped them bath[e] in 2-3 months.

Thus, the record supports the court’s reasoning that

Mother interfered with the children’s relationship with

Father. See HRS § 571-46(b)(11).

7. Father’s relocation plan was realistic, credible, and sustainable

Last, we hold that the family court properly concluded that

Father is “a fit and proper parent who can provide a stable,

safe[,] and wholesome home for the minor children in Utah” and

that his relocation plan was “realistic, credible, and

sustainable.” The record supports that Father is an engaged

parent with significant family support, housing, and resources

to care for the children in Utah. The children were born in

Utah, and had only spent about a year in Hawaiʻi before Mother

sought sole custody. They are close with family members in

Utah.

Mother was born and raised in Colorado, Oregon, and Utah.

She does not have strong ties to Hawaiʻi other than her parents’

support in providing her housing at their rental home. While

the record is unclear as to why Mother’s parents moved from Utah

to Hawaiʻi, Mother still has family living in Utah that she could

live with if she chooses to move back to Utah and have

supervised visits.

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The record supports that Father has a positive relationship

with his children and has been involved in their upbringing.

Father was engaged in caregiving of the children before Mother

and Father’s separation. See HRS § 571-46(b)(4) (the history of

caregiving or parenting by each parent prior and subsequent to a

marital or other type of separation). FOF 61 reads: “Until the

minor children moved to Maui, Father actively and equally

participated in the rearing of the minor children.” Even though

Mother was a “stay-at-home mom” while Father worked in Utah,

Father testified that “I’d come home [from work] and we’d cook

dinner. I’d help change diapers, clean rooms, play with the

kids as much as I could, help put them to bed. We all shared

the same bed.” Paternal Grandmother also testified that

“[Father] always has been an everyday part of their life. It’s

only since they moved to Hawaii that he hasn’t.”

Since moving to Hawaiʻi, Father has sought to improve his

circumstances so that he can be a present, involved parent. He

took a second job, and obtained his employer’s permission to use

a three-bedroom home on the farm for when his children visited.

He visited the children and co-parented with Mother at Mother’s

parents’ home on the weekends until Mother began making

accusations of abuse.

FOFs 54 through 64, supported by the record, detail full

family support in Utah. Father testified that he would seek re-

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employment at his prior distribution job in Utah, and that his

employer would let him “come back.” Paternal Grandfather

offered an apartment type living area in his home that Father

and children could reside in. This home would be within ten

miles of Father’s two siblings who are willing to provide child

care for Father while he works. Father’s siblings also have

young children close in age to the children.

The children were born in Utah, and were connected to

family (like their cousins) in Utah before moving to Maui. Even

after moving to Hawaiʻi, the children spoke to their cousins over

FaceTime and “have feelings for one another.” Paternal

Grandmother lives twenty minutes from Father’s proposed

residence, already maintains contact with the children via

FaceTime and phone, and is willing to retire early to help

Father if needed. None of Father’s family have alcohol or drug

issues. Thus, we hold that the record supports the family

court’s holding that awarding Father sole legal and physical

custody of the children, granting the relocation request, and

awarding Mother supervised visitation is in the best interest of

the children.

We hold that there was no abuse of discretion by the family

court.

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8. The family court did not err in finding clear and convincing evidence of Mother’s abuse of process

Mother alleges that the court based its decision “solely”

on her misuse of process in bringing “false allegations of

abuse.” She maintains that the ICA erred in “summarily”

affirming the family court’s decision to dissolve Judge Heely’s

relocation to Utah, and limit Mother to supervised visitation

based “solely” on her request for said protective orders.

Mother ignores the record. As detailed, the family court

considered far more than Mother’s abuse of process. Mother’s

argument lacks merit.

We hold that the family court did not clearly err in

concluding that there is clear and convincing evidence that

Mother misused the protection from abuse process.

Per HRS § 571-46(b)(16), the family court may consider

clear and convincing evidence of abuse of process by a parent in

determining the best interest of the child:

(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.

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HRS § 571-46(b)(16).

The family court found the following related to abuse of

process:

104. Mother filed a total of eight ex parte petitions for an HRS § 586 temporary restraining order during the pendency of [this case]. Seven of those eight ex parte petitions were denied. In light of the full record and additional information presented before the Court at trial, the eighth petition will also be dissolved due to insufficient evidence.

105. By clear and convincing evidence, Mother misused the protection [from] abuse process under chapter 586 to gain a tactical advantage in this proceeding. Mother’s misuse of the protection from abuse process was intentional and voluntary.

106. By clear and convincing evidence, Mother’s misuse tends to show that she will not be able to cooperate successfully with Father in their shared responsibilities for minor children.

Mother filed four sets of TROs on behalf of Jack and Grace

against Father between June 18, 2021, and October 20, 2021.

Though win-loss record is not decisive to HRS § 571-46(b)(16)

misuse of process, seven of the eight TROs were dismissed.

Clear and convincing evidence “will produce in the mind of

the trier of fact a firm belief or conviction as to the

allegations sought to be established, and requires the existence

of a fact be highly probable.” Iddings, 82 Hawaiʻi at 13, 919

P.2d at 275.

Mother filed the TROs in connection with her escalating

allegations and court proceedings. Given the court’s findings

regarding Mother’s coaching of the children to make disclosures,

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and the timing of the TROs, we hold that there was

circumstantial evidence to support that Mother filed TROs to

gain an advantage in the custody proceedings. See id. Thus,

the court did not clearly err in finding that it was highly

probable Mother wilfully abused the protection from abuse

process. See id.

Mother was self-represented when she filed the first two

TROs. She filed the first set of TROs on June 18, 2021, about

two weeks after the family court ruled against her custody

request, and five days after reporting sexual abuse of the

children to MPD. The court dismissed that set of TROs.

On June 30, the day after the June 29, 2021 CJC interview

where neither child made disclosures of sexual abuse, Mother

filed another set of TROs on behalf of the children. There were

no disclosures during the interviews, so the court could

reasonably infer that Mother’s TRO was not filed based on new

information, but rather to gain a tactical advantage. The

petitions were denied without a hearing.

On August 12, 2021, Father filed a motion for emergency

custody and relocation. Mother then filed what the court called

a “rushed TRO” the day before the August 27, 2021 hearing on

Father’s motion for emergency custody and relocation. According

to the court, the TRO contained similar allegations to those

brought when Mother was self-represented. Mother served the TRO

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on Father on August 26 after business hours, but did not serve

Father’s counsel in the morning before the August 27, 2021

Mother’s counsel claimed the TRO was filed to prevent

sexual abuse by Father during visits. Father’s counsel

countered that Mother tactically filed the TRO - there were no

scheduled visits before the court hearing. Visitation could

have been discussed in court the next day. The family court was

skeptical of Mother’s intentions. It questioned whether the

filing was made for another reason. The custody evaluator had

“just [submitted] their report on August 5th.” The court thus

questioned Mother’s motives, and whether it was “a strategic

move on [M]other’s part to file this petition after the

professional custody evaluator [filed her report with the

court].” The court also suggested that “it may be a strategic

move on [M]other’s part to alienate, further alienate and deny

[F]ather his rights of meaningful contact with children.”

Those TROs were later dismissed by stipulation. The record

supports that Mother strategically filed the TRO to gain an

advantage during the August 27, 2021 hearing and the proceedings

generally.

On October 20, 2021, Mother again filed a set of TROs. Now

she alleged that the children had disclosed sexual assault to

Dr. Goldberg. The court granted a protective order on behalf of

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Jack in November 2022, and dismissed the TRO filed on behalf of

Grace. (After trial, the family court dissolved the TRO.)

Collectively, this evidence shows that Mother’s misuse of

the protection from abuse process was wilful. See Iddings, 82

Hawaiʻi at 13, 919 P.2d at 275. Thus, we hold that the family

court did not err by finding that Mother wilfully misused the

protection from abuse process by clear and convincing evidence,

and that this factor weighed in Father’s favor in granting

Father custody.

C. Motion for Reconsideration

On April 7, 2022, Mother filed a motion for reconsideration

and further hearing pursuant to HFCR Rules 59 and 60. The

family court denied the motion. The ICA affirmed the family

court’s denial.

Mother argues before this court that “one full day

(1/28/22), a half day (1/31/22) and two hours on a third

(2/15/22), [was] not near enough time for multiple experts and

the parties to address custody, visitation, relocation and a

protective order finding a threat of sex abuse.”

“The family court may grant a motion for a new trial ‘to

all or any of the parties and on all or part of the issues for

good cause shown[.]’” Doe v. Doe, 98 Hawaiʻi 144, 150, 44 P.3d

1085, 1091 (2002) (quoting HFCR Rule 59(a)). A court may grant

a Rule 60(b) motion for relief from judgment or order “upon a

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showing of exceptional circumstances.” Thomas-Yukimura v.

Yukimura, 130 Hawaiʻi 1, 9, 304 P.3d 1182, 1190 (2013) (citing

HFCR Rule 60(b)(6)). Motions for a new trial and

reconsideration are reviewed under the abuse of discretion

standard. Doe, 98 Hawaiʻi at 150, 44 P.3d at 1091.

in denying Mother’s motion.

First, we hold that Mother failed to show exceptional

circumstances justifying relief from judgment under HFCR Rule

60(b). As analyzed above, the family court did not abuse its

discretion in awarding Father sole legal and physical custody

and allowing relocation. Mother’s arguments that the family

court was biased and abused its discretion do not constitute

exceptional circumstances justifying relief. See HFCR Rule

60(b). The ICA’s correctly affirmed the family court’s denial

of this motion.

Second, we hold that the family court did not abuse its

discretion in denying the motion for new trial under HFCR Rule

59. Mother did not show good cause. The ICA correctly affirmed

the family court’s denial of this motion.

Mother called nearly the same number of witnesses as

Father. Of the eleven non-party witnesses, Mother called five

witnesses: SW Armstrong, Dr. Goldberg, Nurse Baumstark,

Psychologist Riggs, and Dr. Teliho. Psychologist Riggs and

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Nurse Baumstark were called as expert witnesses. Mother does

not say how her other four proposed expert witnesses (two were

Utah-based realtors) would have added further probative evidence

as to whether Father should have sole legal and physical custody

of the children. See Doe, 98 Hawaiʻi at 156, 44 P.3d at 1097

(court abused its discretion in declining to allow any of

Mother’s witnesses to testify because their testimony “was

pertinent to whether Father should have sole legal and physical

custody of Child”).

Father called six witnesses: Detective Satterfield, CWS

social worker Christianna Bhader, SW Reinecke, Psychologist

Riggs, Paternal Grandmother, and his co-worker. The family

court did not err in allowing Father one more witness than

At the close of evidence, the court asked the parties, “Are

there any other matters that the parties need to bring to the

Court’s attention?” Mother did not request to call any more

witnesses. Aside from retrospectively citing the length of the

trial, Mother did not present any reasons for why she could not

have called other witnesses.

Thus, we hold that the court did not abuse its discretion

in denying the motion for reconsideration and continued hearing

under HFCR Rules 60 and 59.

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D. Post-Decree Relief

Given the impact of child custody decisions on children,

parents, and family systems, we stress the availability of post-

decree relief in family court proceedings. Custody awards are

subject to modification or change “whenever the best interests

of the child require or justify the modification or change.”

Waldecker v. O’Scanlon, 137 Hawaiʻi 460, 470, 375 P.3d 239, 249

(2016) (citing HRS § 571–46(a)(1) and (6)). Thus, Mother may

seek post-decree relief if she believes the best interest of the

children require modification or change to the existing order.

See id.

III.

We affirm the ICA’s May 6, 2024 judgment, the family

court’s March 28, 2022 Findings of Fact, Conclusions of Law,

Decision and Order, and the family court’s April 25, 2022 Order

Denying Petitioner’s Motion for Reconsideration, Clarification

and Further Hearing.

Peter Van Name Esser /s/ Mark E. Recktenwald for petitioner /s/ Todd W. Eddins Benard M. Herren for respondent /s/ Vladimir P. Devens