Hawaii Grandparents' Rights: Two Visitation Statutes Explained

A fit parent's decision about who spends time with a child is legally protected in Hawaii, as in every state. Hawaii courts do not start from the assumption that a grandparent is entitled to visitation; they start from deference to the parent, and a grandparent must fit within a specific statutory path and meet a real evidentiary standard to get a court order.

Hawaii is unusual because it actually offers two distinct routes to grandparent visitation, rather than a single statute. Most secondary sources on this topic describe only one of them. Hawaii is also one of the few states whose grandparent visitation statute was struck down as unconstitutional by its own supreme court and then rewritten by its legislature. This page explains both routes, that history, the custody track, and an adoption question Hawaii's courts have not yet resolved.

Statute text verified live against the official Hawaii Revised Statutes: HRS §571-46.3, §571-46(a)(2) and (a)(7), and §578-16, together with the official Case Notes for each section and the published Intermediate Court of Appeals opinion in SC v. JC (2022). This article has not yet been reviewed by a licensed attorney.

The Fit-Parent Presumption Comes First

Under Troxel v. Granville, 530 U.S. 57 (2000), a fit parent's decision about a child's associations must receive at least some special weight from a reviewing court. Hawaii goes further than the federal floor. Applying its own constitution's privacy guarantee, article I, section 6, the Hawaii Supreme Court held in Doe v. Doe that a third party petitioning for visitation must show the child will suffer significant harm without it before the family court may even reach the question of what visitation is in the child's best interests.

Hawaii has not built a single, uniform statute around that principle; it has two separate provisions that apply in different situations. A reader's actual path in Hawaii depends heavily on whether there is already an open custody case involving the child.

Route One: HRS Section 571-46.3

This is Hawaii's dedicated grandparent-visitation statute, and it is narrowly triggered. A grandparent may file a petition, but the court may award visitation only if it makes three findings: that Hawaii is the child's home state at the time the proceeding commences; that the petitioner's child, who is a parent of the minor, is unable to exercise parental visitation because of incarceration or death; and that denial of reasonable grandparent visitation would cause significant harm to the child. There is no divorce or separation trigger under this section at all.

The statute then sets the burden explicitly. There is a rebuttable presumption that the parent's or custodian's decision about visitation is in the child's best interest, and that presumption may be rebutted only by clear and convincing evidence that denying visitation would cause significant harm. Clear and convincing is a demanding middle standard, well above the preponderance standard used in most civil disputes.

Before a hearing can begin, each living parent and the child's custodians must receive actual or constructive notice of the petition's allegations and of the time and place of the hearing.

Route Two: HRS Section 571-46(a)(7)

Hawaii's general custody-and-visitation statute contains a second avenue that most secondary sources on this topic miss entirely. Within an existing custody dispute, meaning a divorce, separation, annulment, separate maintenance action, or any other proceeding where the custody of a minor child is already at issue, reasonable visitation rights shall be awarded to parents, grandparents, siblings, and any person interested in the welfare of the child in the discretion of the court, unless it is shown that visitation would be detrimental to the child's best interests.

On the page, that language looks like a lower bar than Section 571-46.3's harm-and-presumption test. In practice it is not the easy route it appears to be, for two reasons.

First, the constitutional overlay applies regardless of which statute a grandparent files under. Doe held that the harm-to-the-child showing is required by the Hawaii Constitution before a court considers best interests in a third-party visitation case against a parent whose fitness is not in question, and in 2022 the Intermediate Court of Appeals applied that holding to grandparent visitation directly.

Second, the Intermediate Court of Appeals has already construed paragraph (7) itself. It held that the word shall in paragraph (7) means visitation is to be granted subject to the court's properly exercised discretion, and that paragraph (7) does not limit the family court's discretion to deny visitation only where a detriment to the child's best interests has been demonstrated. A court may decline to order visitation for reasons other than proven detriment.

Route Two is still worth knowing about, because it is the only avenue available when a parent is alive and not incarcerated. It is not a shortcut around the harm standard.

The Case Law: Doe v. Doe and the 2023 Rewrite

The version of Section 571-46.3 that existed before 2023 was strikingly permissive. It required only that Hawaii be the child's home state and that reasonable visitation be in the child's best interests. There was no harm requirement and no parental presumption.

In Doe v. Doe, 116 Hawaii 323, 172 P.3d 1067 (2007), the Hawaii Supreme Court applied strict scrutiny and held that proper recognition of parental autonomy in child-rearing decisions requires the party petitioning for visitation to demonstrate that the child will suffer significant harm in the absence of visitation before the family court may consider what degree of visitation is in the child's best interests. Because that harm standard could not be read into the statute without effectively amending it, the court held Section 571-46.3, as written, was unconstitutional.

That is why the current statute reads the way it does. The significant-harm finding and the clear-and-convincing rebuttable presumption described above were added by the legislature in 2023, in Act 77, which appears in the section's own history note. They are the legislature's codification of what Doe held the Hawaii Constitution already required, not standards that simply sat unexamined in the statute book. No published Hawaii decision has yet construed the rewritten 2023 version, so how family courts will apply the amended text remains genuinely open.

Two other published decisions matter to grandparents. In a 2022 published opinion, SC v. JC, No. CAAP-20-0000618, the Intermediate Court of Appeals held that Doe's harm-to-the-child standard applies where a custodial parent whose fitness has not been challenged seeks to modify a visitation order entered in favor of maternal grandparents, and it affirmed the grandparents' visitation because the family court had entered extensive findings that the children would suffer significant harm if the order were modified. And in 112 Hawaii 113 (App.), 144 P.3d 561 (2006), the court held that article XII, section 7 of the Hawaii Constitution does not give native Hawaiian grandparents any more visitation rights than Section 571-46(a)(7) and Section 571-46.3 give all grandparents.

The practical lesson from SC v. JC is that the harm standard is demanding but not impossible. The grandparents there won because the record contained detailed, specific factual findings about harm to those particular children, not general assertions about the value of grandparents.

Custody: A Distinctive Hawaii Doctrine

Hawaii's custody statute, HRS Section 571-46(a)(2), takes an approach worth flagging because it runs in an unusual direction. Custody may be awarded to someone other than a parent whenever it serves the child's best interest, and a person who has had de facto custody of the child in a stable and wholesome home, and who is fit and proper, is entitled prima facie to an award of custody. That is a presumption favoring the long-term caregiver rather than the parent, a structurally different design from most states' parent-favoring presumptions, and it applies to custody, not ordinary visitation.

Adoption: An Unresolved Question

Hawaii has no statute that says what happens to a grandparent visitation order after the child is later adopted. That gap is real, but it is not the same thing as the adoption statute being irrelevant.

HRS Section 578-16, the effect-of-adoption statute, is mostly probate-oriented, and much of it addresses inheritance and legal-kindred consequences under the Uniform Probate Code. But two subsections speak in general terms. Subsection (c) provides that an adopted individual and the adopting parents shall sustain toward each other the legal relationship of parent and child and shall have all the rights and be subject to all the duties of that relationship. Subsection (d) provides that, except as provided in subsection (e), all legal duties and rights between the individual and the individual's former legal parent or parents shall cease from the time of the adoption.

That subsection (d) language is exactly what a party would invoke to argue that an existing visitation order does not survive an adoption, and a party has done it. In SC v. JC, the father argued that because his new wife had adopted the children, Section 578-16 meant the maternal grandparents no longer had any legal rights and duties as to them. The Intermediate Court of Appeals did not reach the merits: because the father had not raised the argument in the family court, it was deemed waived on appeal. So the question has been litigated and left open, not answered.

One drafting detail is worth getting right, because it is easy to misread. The carve-out preserving the full reciprocal rights and duties that previously existed between a legal parent and the child sits in the proviso to subsection (d), and it applies where the child is adopted by someone married to a legal parent, the stepparent-adoption situation. Subsection (e) is a narrower provision that operates only for interpreting a disposition in a will, trust, or other lifetime instrument and for determining heirs at law; it applies where the adopting party is a spouse of a natural parent, or a natural grandparent, a sibling of the natural parent, or a sibling of the individual, or the spouse of any of those. Neither provision is a visitation-standing exception, and neither should be read as one.

Anyone in this situation should raise the question directly with the family court rather than assume either outcome.

How to File: Procedure and Venue

Both visitation provisions are codified within HRS Chapter 571, titled "Family Courts," and both are heard in Hawaii's family court system. Section 571-46.3 is an independent petition route with its own triggers. Section 571-46(a)(7) is not independent; it is only available within an existing custody dispute. Hawaii does not publish a single statewide fee schedule for either filing, so confirm the current cost with the family court in the circuit where you plan to file.

Mediation and Informal Resolution First

Because the harm-to-the-child standard is a demanding one, and because which route applies depends on whether a custody case is already open, families should explore mediation or a direct conversation with the parent before filing. A petition that cannot document specific, concrete harm to this child from losing contact is unlikely to succeed, and litigation carries real cost and family risk regardless of which route applies.

The Litigation Reality in Hawaii

A contested case under either Hawaii statute can take many months. The core standard is now clear, but its application is fact-intensive: SC v. JC turned on extensive, specific findings about the effect on those particular children, and no published decision has yet interpreted the 2023 amendments to Section 571-46.3. If, after exploring mediation, a Hawaii grandparent decides their situation fits one of these two routes and wants to pursue a petition, a family-law attorney licensed in Hawaii can evaluate the specific facts, including which of the two statutes actually applies, and explain what the case would realistically involve.

Related Resources

For the separate custody track, see can grandparents get custody. For a national overview of grandparent visitation, see grandparent visitation rights and the grandparents' rights by state hub. For related Hawaii family-law topics, see Hawaii child custody laws and Hawaii divorce laws.

Disclaimer

This article provides general information about Hawaii grandparents' rights law. It is not legal advice and does not create an attorney-client relationship. Because Section 571-46.3 was substantially rewritten in 2023 and no published decision has yet applied the amended text, outcomes in individual cases remain hard to predict. Verify current details with the family court or a licensed Hawaii attorney before acting on anything here.

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Last updated: 2026-09-02.

Frequently Asked Questions

Does Hawaii have one grandparent visitation law or two?

Two. HRS Section 571-46.3 is a freestanding petition triggered only by a parent's incarceration or death. HRS Section 571-46(a)(7) is available only inside an already-open custody dispute. Both are subject to the same constitutional harm-to-the-child requirement.

Can a Hawaii grandparent file for visitation if the parents are just divorcing?

Not under Section 571-46.3, which requires a parent's incarceration or death. If a custody or divorce proceeding is already open, Section 571-46(a)(7) may allow the court to consider grandparent visitation within that case.

Has any Hawaii court ruled on whether these statutes are constitutional?

Yes. In Doe v. Doe, 116 Hawaii 323, 172 P.3d 1067 (2007), the Hawaii Supreme Court held Section 571-46.3 facially unconstitutional because it did not require a showing of harm to the child. The legislature rewrote the section in 2023 to add that requirement, and no published decision has yet construed the amended version.

What exactly does a Hawaii grandparent have to prove?

Under Section 571-46.3, that Hawaii is the child's home state when the case is filed, that the grandparent's own child cannot visit because of incarceration or death, and that denying visitation would cause the child significant harm. The parent's decision is presumed correct and can be overcome only by clear and convincing evidence.

Does adoption end a Hawaii grandparent's visitation rights?

No Hawaii statute answers that directly. A father raised the argument under HRS Section 578-16 in a 2022 appeal, but the court deemed it waived because he had not raised it in the family court, so the question remains open.

Can a Hawaii grandparent get custody instead of visitation?

Yes, under a different standard. HRS Section 571-46(a)(2) lets a person with de facto custody in a stable, wholesome home, who is fit and proper, seek custody, with a presumption favoring that long-term caregiver rather than the parent.