Section 571-46.3 - Grandparents' visitation rights; petition; notice; order(a) A grandparent or the grandparents of a minor child may file a petition with the court for an order of reasonable visitation rights. The court may award reasonable visitation rights; provided that the following findings are made: (1) The State is the home state of the child at the time of the commencement of the proceeding; (2) The petitioner's child, who is a parent of the minor child, is otherwise unable to exercise parental visitation of the minor child due to incarceration or death; and(3) Denial of reasonable grandparent visitation rights would cause significant harm to the child.(b) No hearing for an order of reasonable visitation rights under this section shall commence until each of the living parents and the child's custodians are provided due notice, actual or constructive, of the allegations of the petition and of the time and place of the hearing .(c) In any proceeding on a petition filed pursuant to this section, there shall be a rebuttable presumption that a parent's or custodian's decision regarding visitation is in the best interest of the child. The presumption may be rebutted by clear and convincing evidence that denial of reasonable grandparent visitation rights would cause significant harm to the child.(d) In awarding reasonable grandparent visitation, the court shall be guided by all standards, considerations, and procedures for parent visitation rights under section 571-46.(e) An order issued pursuant to this section shall be enforceable by the court, and the court may issue other orders to carry out these enforcement powers if in the best interests of the child.(f) Any person who violates the terms and conditions of an order awarding reasonable grandparent visitation rights pursuant to subsection (a) shall be subject to sanctions as determined by the court and in accordance with section 571-81.Amended by L 2023, c 77,§ 1, eff. 6/14/2023.L 1993, c 166, §1; am L 1998, c 20, §2Rules of Court
Pleadings, see Hawaii Family Court Rules, part A(III).
The "best interests of the child" standard in paragraph (2) requires the family court to give "special weight" to (i.e., uphold a rebuttable presumption in favor of) the visitation decisions of a custodial parent whose fitness has not been challenged; thus, the family court erred to the extent that it relied on Troxel to invalidate this section (2003); however, as a "harm to the child" standard was constitutionally required and could not be read into this section without making a substantive amendment to the statute, this section, as written, was unconstitutional. 116 H. 323, 172 P.3d 1067. Article XII, §7 of the Hawaii constitution and/or § 1-1 do not authorize for native Hawaiian grandparents any more visitation rights than § 571-46(7) and this section authorize for all grandparents, native and non-native Hawaiian.112 Haw. 113 (App.),144 P.3d 561. Discussed:88 Haw. 68 (App.),961 P.2d 1162.