No. 28662 (Feb. 27, 2009)
Opinion pdf
OPINION OF THE COURT BY LEONARD, J.
Respondent-Appellant Jane Doe (Mother) appeals from a June 19, 2007 order (Final Order) of the Family Court of the Second Circuit (Family Court), which granted sole legal and sole physical custody of the parties' five-year-old child (Child) to Petitioner-Appellee John Doe (Father) and granted Father leave to relocate to the mainland with Child. Mother also challenges two interlocutory orders of the Family Court, a September 23, 2005 ex parte order awarding sole custody to Father (Ex Parte Order), and an August 17, 2006 order granting in part and denying in part Mother's motion to vacate the Ex Parte Order and two purported stipulated orders (Order re Motion to Vacate), as well as the Family Court's findings of fact (FOFs) and conclusions of law (COLs) entered on June 19, 2007.
We hold that: (1} Mother's argument that the Ex Parte Order violated her substantive liberty interests and due process rights under the Hawai'i Constitution is not moot because of the significant, unmitigated impact of the Ex Parte Order; (2) under the Hawai'i Constitution, absent express findings of exigent or emergency circumstances, due process requires that a parent be given notice and an opportunity to be heard prior to a change in primary physical or legal custody in family court custody matters; (3) the Family Court erred when it issued a blanket protective order precluding Mother from obtaining any discovery from the guardian ad litem without balancing Mother's legitimate discovery needs in the context of this case against the alleged injury or burden that might result from Mother's discovery; (4) subject to reasonable restrictions and limitations, Mother was entitled to seek discovery from a therapist whose opinions played a critical role in this case and to subpoena the therapist's testimony; (5) the Family Court did not err in excluding expert testimony that lacked foundation; (6) a party's willingness to submit to polygraph testing, as well as the results of such polygraph testing, are inadmissible as evidence in child custody proceedings; (7) in this case, polygraph results substantially contributed to the granting of the Ex Parte Order, triggered Mother's prolonged separation from Child, substantially affected the outcome of the custody proceedings, and were highly prejudicial to Mother in ways that were not adequately addressed by merely excluding those results at trial; and (8) the best interest of a child can be justly and adequately determined only in proceedings that are consistent with the requirements of the Hawai'i Constitution and applicable law. As provided herein, we vacate the Final Order and remand for further proceedings consistent with this opinion.
