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Electronically Filed
Supreme Court
SCWC-27580
07-FEB-2012
10:24 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
LILY E. HAMILTON on behalf of AMBER J. LETHEM, a minor,
Respondent/Plaintiff-Appellee,
vs.
CHRISTY L. LETHEM, Petitioner/Defendant-Appellant.
NO. SCWC-27580
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 27580; FC-DA NO. 05-1-1977)
February 7, 2012
NAKAYAMA, ACTING C.J., ACOBA, DUFFY, AND MCKENNA JJ.,
AND CIRCUIT JUDGE CRANDALL, IN PLACE OF
RECKTENWALD, C.J., RECUSED
OPINION OF THE COURT BY ACOBA, J.
We hold that (1) parents have a constitutional right to
discipline children inhering in their liberty interest in the
care, custody, and control of their children, under the due
process clause, article 1, section 5 of the Hawai#i Constitution,
(2) a parent may raise the right of parental discipline in a
Hawai#i Revised Statutes (HRS) § 586-5 show cause hearing in
opposition to the continuation of a temporary restraining order
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(TRO) issued under HRS chapter 586 on allegations of domestic
abuse, (3) in such circumstances trial courts shall consider
whether the discipline is reasonably related to the purpose of
safeguarding or promoting the welfare of the minor in determining
whether the parent’s conduct constituted abuse or proper
discipline, and (4) generally a non-custodial parent retains the
right to discipline a child when the child is under his or her
supervision. Under the foregoing propositions, we vacate the
September 21, 2011 judgment of the Intermediate Court of Appeals
(ICA) filed pursuant to its June 30, 2011 published opinion, and
the October 5, 2005 Order Regarding Temporary Restraining Order
of the Family Court of the First Circuit(the court) issued under
HRS chapter 5861,
1
The relevant sections of HRS § 586 (2006 Repl.) follow;
§ 586-1 Definitions. As used in this chapter:
“Domestic abuse” means:
(1) Physical harm, bodily injury, assault, or
the threat of imminent physical harm,
bodily injury, or assault, extreme
psychological abuse or malicious property
damage between family or household
members; or
(2) Any act which would constitute an offense
under section 709-906, or under part V or
VI of chapter 707 committed against a
minor family or household member by an
adult family or household member.
“Extreme psychological abuse” means an
intentional or knowing course of conduct
directed at an individual that seriously alarms
or disturbs consistently or continually bothers
the individual, and that serves no legitimate
purpose; provided that such course of conduct
would cause a reasonable person to suffer
extreme emotional distress.
“Family or household member” means spouses
or reciprocal beneficiaries, former spouses or
former reciprocal beneficiaries, persons who
(continued...)
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1
(...continued)
have a child in common, parents, children,
persons related by consanguinity, persons
jointly residing or formerly residing in the
same dwelling unit, and persons who have or have
had a dating relationship.
. . . .
“Malicious property damage” means an
intentional or knowing damage to the property of
another, without his consent, with an intent to
thereby cause emotional distress.
(Emphases added.)
HRS § 586-4 (2006 Repl.) entitled “Temporary
Restraining Order,” states in relevant part as
follows: (a) Upon petition to a family court judge,
an ex parte temporary restraining order may be granted
without notice to restrain either or both parties from
contacting, threatening, or physically abusing each
other, notwithstanding that a complaint for annulment,
divorce, or separation has not been filed. The order
may be granted to any person who, at the time the
order is granted, is a family or household member as
defined in section 586–1 or who filed a petition on
behalf of a family or household member. The order
shall enjoin the respondent or person to be restrained
from performing any combination of the following acts:
(1) Contacting, threatening, or physically abusing the
protected party;
(2) Contacting, threatening, or physically abusing any
person residing at the protected party’s residence; or
(3) Entering or visiting the protected party's residence.
(Emphases added.)
HRS § 586-5 (2006 Repl.) provides in relevant part:
§ 586-5 Period of order; hearing. (a) A
temporary restraining order granted pursuant to this
chapter shall remain in effect at the discretion of
the court, for a period not to exceed ninety days from
the date the order is granted.
(b) On the earliest date that the business of
the court will permit, but no later than fifteen days
from the date the temporary restraining order is
granted, the court, after giving due notice to all
parties, shall hold a hearing on the application
requiring cause to be shown why the order should not
continue. In the event that service has not been
effected, the court may set a new date for the
hearing; provided that the date shall not exceed
ninety days from the date the temporary restraining
order was granted. All parties shall be present at
the hearing and may be represented by counsel.
(Emphases added.)
(continued...)
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against Petitioner/Defendant-Appellant Christy L. Lethem
(Petitioner) and in favor of his then-fifteen-year-old minor
daughter, Amber J. Lethem (Minor) in an HRS chapter 586 petition
alleging domestic abuse of Minor brought by Petitioner’s ex-wife,
Respondent/Plaintiff-Appellee Lily E. Hamilton (Mother or
Respondent).
I.
The following essential matters, some verbatim, are
from the record and the submissions of the parties.
A.
On September 23, 2005, Mother filed an Ex Parte
Petition for a Temporary Restraining Order (TRO) and Statement on
behalf of Minor to enjoin Petitioner from contacting, calling, or
visiting Minor pursuant to HRS chapter 586. Petitioner had
allegedly “physically harmed, injured or assaulted” Minor by
“slapping, punching, [and] hitting” her on August 25, 2005.
Petitioner had also allegedly subjected Minor to extreme
1
(...continued)
HRS § 586-5.5 (2006 Repl.) provides in relevant part:
§ 586-5.5 Protective order; additional orders.
(a) If, after hearing all relevant evidence, the
court finds that the respondent has failed to show
cause why the order should not be continued and that a
protective order is necessary to prevent domestic
abuse or a recurrence of abuse, the court may order
that a protective order be issued for a further fixed
reasonable period as the court deems appropriate.
(Emphases added.)
HRS § 586-11 (2006 Repl.) provides in relevant part:
§ 586-11 Violation of an order for protection.
(a) Whenever an order for protection is granted
pursuant to this chapter, a respondent or person to be
restrained who knowingly or intentionally violates the
order for protection is guilty of a misdemeanor.
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psychological abuse by “showing up at [her] school unannounced,
putting [her] down by blaming financial problems on [her], and
saying [that] many problems (such as work problems/emotional
distress) [were her] fault.” The last date alleged for these
incidents was September 16, 2005. The petition stated that Minor
believed she was in immediate danger of being abused by
Petitioner because “of previous actions [by Petitioner,] such as
hitting [her] on [August 12 and August 25], showing up at [her]
school, and verbally abusing [her] as previously stated.”
The court granted the ex-parte TRO the same day it was
filed, prohibiting Petitioner from threatening Minor or anyone
living with Minor, or contacting, writing, telephoning or
otherwise electronically contacting Minor, and from visiting or
remaining within 100 yards of Minor for ninety days until
December 22, 2005. A show cause hearing was scheduled for
October 5, 2005 pursuant to HRS § 586-5(b) as to whether the TRO
should continue.
At the hearing, in which Petitioner was represented by
counsel, Minor alleged three incidents of abuse. The first
allegedly occurred on August 12, 2005. The day before, August
11, 2005, Minor was scheduled to have visitation with Petitioner
after school. Minor called Petitioner and told him that she did
not need a ride from school because Mother was going to pick her
up. This turned out to be a fabrication. Instead, Minor,
another teenage girl, and two teenage boys drove to a store to
pick up the “morning after pill” for the other girl. That
evening, Petitioner called Mother in an attempt to locate Minor,
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but Mother had not heard from Minor. Petitioner eventually
decided to drive to Mother’s house. When Petitioner reached
Mother’s house at around 10:00 p.m., Minor had arrived and
Petitioner took Minor back to his home.
The next day, August 12, 2005, Petitioner and Minor
spoke. When Petitioner learned what Minor had done, he became
very angry. Petitioner informed Minor that he felt she should
have told the other girl’s parents that their daughter was
sexually active and should have allowed them to deal with the
situation. Minor testified that she felt she did not have to
talk with Petitioner because she had already spoken to Mother
about the situation. Minor related that both she and Petitioner
were yelling. Petitioner claimed that Minor was “just ranting
and raving,” and “screaming” at her younger sister. Minor
testified that, at some point, Petitioner hit her. Minor claimed
that Petitioner struck her “a couple of times” and that
Petitioner was attempting to slap her on the face but that she
blocked his blows. Petitioner claimed that he only tried to hit
Minor on the shoulder because Minor had tried to leave and
Petitioner wanted her to stay and talk to him.
Mother was told that Minor and Petitioner were having
an argument and called the police. When the police arrived,
Minor told them that she was fine and the police left. Minor had
no bruises as a result of the incident.
The second incident of alleged abuse took place on
August 25, 2005. Minor claimed that she and Petitioner “got into
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a power struggle.” Minor had gone to Petitioner’s house that day
early in the evening. Petitioner wanted to speak to Minor, but
she did not want to talk because she “had to call other friends
to get [her] homework and [was] busy.” According to Minor,
Petitioner wanted to discuss “how [her] day went.”2 Minor
acknowledged that Petitioner waited several hours to speak with
her. At around 11:00 p.m., Petitioner again attempted to speak
with Minor. Minor did not want to converse and said, “Dad, I
have school tomorrow. I’d really like to go to bed.”
Petitioner allegedly said, “No, we talk now.” The two then began
to argue. Minor claimed that Petitioner then hit her. She
stated, “[A]s I was covering my head, like, he hit me on my
arms.” Petitioner also allegedly told Minor, “Don’t make me do
that again.” Minor then called her Mother and told her that she
was uncomfortable staying with Petitioner.
The last incident of abuse allegedly took place on
September 16, 2005. According to Minor, Petitioner visited her
school unannounced. The principal went to Minor’s classroom and
said that he needed to speak to her. Once outside the classroom,
the principal told Minor, “Your father is downstairs. We need to
handle this now.” Minor claimed that Petitioner had been
threatening to take her out of private school to discipline her.
According to Minor, Petitioner began to say “how everything had
been [her] fault,” “how [Petitioner’s] financial problems were
[her] fault,” and how Minor’s younger sister was “better than”
2
This incident, thus, was apparently not related to the August 12
"birth control" incident.
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Minor in various ways. Minor testified that she felt Petitioner
was “bringing [her] down.”
Petitioner claimed that he was simply attempting to
discipline Minor. Petitioner stated that Minor was difficult at
times, would lie to him, and refused to follow reasonable rules,
such as not riding in a car with anyone under the age of twenty-
one. He claimed, however, that he never attempted to hit
[Minor’s] face, that he only visited her at school twice to talk
to her, and that he never blamed his financial problems on her.
At the conclusion of the hearing, the court found that
the TRO was warranted. The court’s reasoning rested on the
ground that Petitioner did not have a right to discipline Minor
because Mother had sole legal custody. The court stated that if
Minor had been visiting Petitioner and he had “caught [her] doing
drugs,” then Petitioner “ha[d] the right to use physical force,
if necessary.” However, the court believed that Petitioner’s
case was different because “we’re talking about an ongoing
philosophy of how [parents] should run [children’s] lives . . .
[and that,] unfortunately[,] falls with [Mother,] not
[Petitioner].”
In the same vein, the court concluded that HRS § 703-
309,3 which sets forth the circumstances in which use of force by
3
HRS § 703-309 (1993) provides in relevant part:
§ 703-309 Use of force by persons with special
responsibility for care, discipline, or safety of
others. The use of force upon or toward the person of
another is justifiable under the following
circumstances:
(continued...)
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a parent is justifiable in the context of criminal prosecutions,
was relevant,4 but that Petitioner could not take advantage of it
because Mother had sole legal custody of Minor. The court
indicated that it might read HRS § 703-309(1) to afford a baby-
sitter “certain rights” to discipline a child when it “becomes
necessary regarding activities that happen during their [sic]
period of care and custody,” but that it was concerned “whether
or not what this child did was in fact something that happened
during the period of [Petitioner’s] care and custody.”
There was no mention of the term abuse in the court’s
oral and written findings. Instead, the court stated that
“[t]here’s no question in my mind that [Petitioner and Minor]
3
(...continued)
(1) The actor is the parent or guardian or
other person similarly responsible for the general
care and supervision of a minor, or a person acting at
the request of the parent, guardian, or other
responsible person, and:
(a) The force is employed with due regard for the age and
size of the minor and is reasonably related to the
purpose of safeguarding or promoting the welfare of
the minor, including the prevention or punishment of
the minor's misconduct; and
(b) The force used is not designed to cause or known to
create a risk of causing substantial bodily injury,
disfigurement, extreme pain or mental distress, or
neurological damage.
4
The court [orally ruled as follows]:
I do note the citation of 703-309, though
(inaudible) also instructed them to (inaudible) the 703-
309 definition is used in criminal cases. Nevertheless,
703-309 is very instructive in civil matters.
There may be a question of application, but I
think there is some sort of relevance for 793 -- 703-
309. As Petitioner’s counsel has stated on record, 703-
309A [sic] says if the actor is the parent, guardian, or
other person similarly responsible for the care and
supervision of a minor.
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still love each other, and they do have and should have an
ongoing relationship.” The court stated, however, that it was
“struck . . . by Section 4(a)(3)5 . . . [and] really [had] no
choice but to make a finding that what happened in this [case]
was not parental discipline.” From the context, it appears that
the court was under the impression that because Mother had sole
legal custody, Petitioner was not permitted to discipline Minor
on the occasions alleged by Minor.
On November 3, 2005, Petitioner filed his notice of
appeal. On March 3, 2006, at Petitioner’s request, the court
entered its findings of fact (findings) and conclusions of law
(conclusions). In its findings, the court only discussed the
August 25 incident in which Petitioner had struck Minor at around
11:00 p.m. after she refused to speak to him about the apparent
birth control incident.6 The court did not mention the other two
incidents. Additionally, in its written decision, the court
concluded that HRS § 703-309(a) had no application to
Petitioner’s case because that section only applied to criminal
cases. The court also concluded that the responsibility to
discipline was Mother’s only, as the sole legal custodian, but
that in any event, “[a]ssuming . . . [Petitioner] struck [Minor]
because of her refusal to discuss [the birth control] issue late
5
The court was apparently referring to Section IV.A.3 of the TRO
application, in which Minor placed a checkmark next to the box stating
“[Petitioner] has physically harmed, injured or assaulted me by: . . .
slapping, punching, hitting me.”
6
The court apparently confused the dates. The testimony at the
hearing was that the "morning-after pill" incident took place on August 12.
The incident that took place on August 25 was, according to Minor's testimony
at the hearing, unrelated to the August 12 incident.
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during a school night, the court concludes that such an action is
not proper parental discipline.”
B.
On appeal before the ICA, Petitioner represented
himself. He argued that (1) chapter 586 violated his right to
discipline his children;7 (2) chapter 586 ran afoul of procedural
due process protections;8 (3) chapter 586 was gender-biased,9 and
(4) the court abused its discretion in concluding that a TRO was
warranted under the circumstances.10
The ICA held, in an unpublished May 16, 2008
disposition, that Petitioner’s case was moot because the TRO had
expired by its own terms on December 22, 2005. Hamilton v.
Lethem, No. 27580, 2008 WL 2069780 (App. May 16, 2008 (SDO))
[hereinafter Hamilton I]. Judge Foley dissented, explaining that
because the appeal was moot, he would dismiss it rather than
vacate it, as the majority had done. Id. This court vacated,
adopting the collateral consequences exception to the mootness
doctrine, and concluding that Petitioner’s case fell under that
7
Mother, who was the Plaintiff-Appellee before the ICA, argued that
because she was the sole legal custodian, she had the sole right to determine
how Minor should be disciplined.
8
Mother did not respond to this argument.
9
Mother did not respond to this argument.
10
On appeal, Mother had argued that because Petitioner qualified the
ex parte petition as “bogus” and failed to attach the transcript of the show
cause hearing, the only source of facts was the court’s findings and
conclusions, which could not be deemed erroneous. Mother did not address
Petitioner’s argument on the merits. However, as noted, infra, after the ICA
concluded that the appeal was moot, this court remanded for a decision on the
merits. See Hamilton v. Lethem, 119 Hawai#i 1, 12, 193 P.3d 839, 850 (2008)
[hereinafter, Hamilton II]. On remand, the ICA considered the transcript and
the family court’s findings and conclusions. See Hamilton v. Lethem, No.
27580, 2011 WL 2611284, at *8 n.9, *14 (App. Jun. 30, 2011)[hereinafter,
Hamilton III].
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exception because there was a reasonable likelihood that the
issuance of the TRO would harm Petitioner’s reputation, and
remanded to the ICA to address the merits. Hamilton v. Lethem,
119 Hawai#i 1, 12, 193 P.3d 839, 850 (2008) [hereinafter Hamilton
II]. As noted by Petitioner, this court stated,
[T]he TRO was issued by the family court based upon its
express ruling that [Petitioner] did physically harm,
injure[] or assault [Minor]. Such ruling implies that
[Petitioner] is a child abuser and is, therefore,
potentially dangerous, thereby undermining his
reputation and standing in the community. Additionally
. . . the issuance of the TRO against [Petitioner] did
not require him to register in a public database;
however, the TRO, once issued, became part of the public
record. As such, there is a reasonable possibility that
[p]otential employers and landlords [might be] reluctant
to employ or rent to [Petitioner] once they learn of his
status as a [‘child abuser’]. Indeed, pursuant to HRS
chapter 586, any TRO issued under such chapter must be
copied to the appropriate law enforcement agency, HRS §
586-10 (2006), and reported to the department of human
services for investigation, HRS § 586-10.5 (2006).
Thus, the issuance of the TRO could also adversely
affect [Petitioner]'s personal and professional life,
employability, associations with neighbors, [and] choice
of housing.
Id. (internal quotation marks and citations omitted). This court
“vacate[d] the ICA’s June 23, 2008 judgment on appeal and
remand[ed] the case to the ICA with instructions to address the
merits of [Petitioner’s] case.” Id.
C.
On remand, without further briefing or argument, the
ICA held that HRS chapter 586, which empowers the family court to
grant a TRO in cases of domestic abuse, did not violate the
procedural or substantive due process guarantees of the
Fourteenth Amendment to the United States Constitution or of
article 1, section 5 of the Hawai#i Constitution because parents
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do not have a right to abuse their children. Hamilton III, 2011
WL 2611284, at *5-13 (App. Jun. 30, 2011). As to Petitioner’s
contention that the process for obtaining an ex parte TRO was
unconstitutionally gender-biased, the ICA found that Petitioner
waived the point by failing to argue it. See id. at *14.
Lastly, the ICA concluded that the court had not abused its
discretion in issuing the TRO. The ICA found no clear error in
the court’s finding that Petitioner had struck Minor and ruled
that it was “implicit in the [family court’s] findings that
[Petitioner’s] actions were not reasonably calculated to promote
Minor’s welfare.” Id. at *14-15.
II.
Petitioner, now represented by counsel, lists the
following questions in his Application:
1. When determining whether to issue a TRO, does
the parental right to discipline children require the
application of clear and articulable guidelines to
distinguish truly abusive behavior from actions that
are “moderate or reasonable discipline [that] is often
part and parcel of the real world of parenting?”
2. When considering whether to issue a TRO, must
the Family Court recognize that a non-custodial parent
maintains a “residual parental right” to discipline
his[/her] child during a period of unsupervised
visitation, including the right to discipline the
child for morals?
Respondent did not file a Response to the Application.
III.
As to the first question, Petitioner contends that (1)
parents have a fundamental right to discipline their children
under the United States and Hawai#i constitutions that includes a
right to employ corporal punishment; (2) the ICA incorrectly
dismissed Petitioner’s argument because it concluded that (a) the
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criminal statutory defense does not expressly apply in a civil
setting, and (b) the definition of “domestic abuse” under HRS §
586-1 encompasses conduct that might otherwise satisfy the
parental discipline defense; (3) the only way for a parent to
distinguish discipline from abuse is to have clearly established
standards; (4) this court’s interpretation of HRS § 703-309
protects the right to discipline, and for a parent’s
constitutionally protected right to discipline to mean anything,
the same or a similar standard to the one used in the criminal
law context must apply in the civil TRO context; (5) to protect a
parent’s right to discipline this court must interpret “domestic
abuse” under HRS § 586-1 to be the “same or similar”11 to the
parental justification defense under HRS § 703-309; (6) the ICA
gravely erred by failing to apply a discernible standard to
distinguish discipline from abuse; (7) there is a potential due
process violation because parents are left without notice as to
what conduct constitutes abuse and courts will apply their own ad
hoc sense of what the standards are; (8) the ICA simply assumed
Petitioner’s conduct rose to abuse and erred in not recognizing
Petitioner’s constitutional right to discipline.
As to the second question, Petitioner contends that (1)
the ICA should have taken judicial notice of documents that
established Petitioner’s right to discipline his daughter; (2)
the ICA’s decision perpetuated the collateral consequences
11
Petitioner’s contention is read to mean that the same standard
used to distinguish abuse from discipline under HRS § 703-309(1) should be
used in HRS § 586-1.
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incident to the TRO because Petitioner’s reputation was harmed by
the ICA’s decision; (3) the ICA’s decision also hurt Petitioner
because the court granted full custody of Minor to Mother as a
result of the TRO; (4) the ICA erred in concluding that
Petitioner did not have a right to discipline Minor; (5) it is
well-established that parents with visitation rights retain
authority to discipline their children during visitation.12
IV.
It is now established that parents may discipline their
children as part of the parents’ liberty interest in the care,
custody, and control of their children. “[T]he interest of
parents in the care, custody, and control of their children . . .
is perhaps the oldest of the fundamental liberty interests
recognized by [the United States Supreme Court].” In re Doe, 99
Hawai#i 522, 532, 57 P.3d 447, 457 (2002) (citing Troxel v.
Granville, 530 U.S. 57, 65 (2000)). The Court has not been
squarely presented with the question whether the right to care
for children also includes a right to use corporal punishment to
discipline them. See Sweaney v. Ada County, Idaho, 119 F.3d
1385, 1391 (9th Cir. 1997) (holding that there is no clearly
established federal constitutional right of a parent to inflict
corporal punishment on a child). However, the Court has decided
a number of cases that suggest it would recognize a parent’s
right to use corporal punishment. See Troxel, 530 U.S. at 65
(plurality opinion) (“[T]he [constitutional] liberty [interest]
12
Petitioner’s arguments are presented in an order different from
that in which Petitioner made them.
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of parents and guardians includes the right to direct the
upbringing and education of children under their control[.])
(internal quotation marks and citations omitted); Parham v. J.
R., 442 U.S. 584, 602 (1979) (“Our jurisprudence historically has
reflected Western civilization concepts of the family as a unit
with broad parental authority over minor children.”); Ingraham v.
Wright, 430 U.S. 651, 661, 670 (1977) (suggesting that parents
are privileged to use force to discipline their children inasmuch
as the Court observed that the prevalent rule in this country
today permits teachers to use “such force as [the] teacher . . .
reasonably believes to be necessary for (the child’s) proper
control, training, or education”) (internal quotation marks and
citations omitted).
Additionally, “Independent of the federal constitution
. . . parents have a substantive liberty interest in the care,
custody, and control of their children protected by the due
process clause of article 1, section 5 of the Hawai#i
Constitution.” In re Doe, 99 Hawai#i at 533, 57 P.3d at 458. It
is well-established that imposing discipline is part and parcel
of caring for children, since a parent may not be able to care
properly for, or exercise control over, an unruly child without
the ability to impose discipline. See Ingraham, 430 U.S. at 661.
Such discipline has included corporal punishment. See id.
(“Professional and public opinion is sharply divided on the
practice [of corporal punishment], and has been for more than a
century. Yet we can discern no trend toward its elimination.”);
State v. Crouser, 81 Hawai#i 5, 14, 911 P.2d 725, 734 (1996)
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(explaining, for purposes of criminal liability, that it is
“well-established,” in Hawai#i, “that parents have a privilege to
subject children to reasonable corporal punishment”). The right
to discipline is therefore inherent in the right to care,
custody, and control of one’s children, as guaranteed by the
Hawai#i Constitution.13
V.
A.
Preliminarily, the ICA distinguished the initial grant
of the ex parte TRO from the show cause hearing. Hamilton III,
2011 WL 2611284, at *8-13. The ICA concluded that the procedures
that permit a court to grant an ex parte TRO under chapter 586
comport with due process. Id. (citing, for example, In re
Guardianship of Carlsmith, 113 Hawai#i 236, 239-40, 151 P.3d 717,
720-21 (2007)).
When a petitioner first applies for a TRO ex parte, a
court must find that there is probable cause to believe that “a
past act or acts of abuse have occurred, or that threats of abuse
make it probable that acts of abuse may be imminent.” HRS § 586-
4(c). Within fifteen days after the TRO is entered, a court is
required to hold a show cause hearing to determine whether the
TRO should remain in force. HRS § 586-5(b); see Styke v. Sotelo,
122 Hawai#i 485, 491, 228 P.3d 365, 371 (App. 2010) (“We hold
that under HRS § 586-5(b), the court is obligated to hold a show-
13
Rights grounded in the Hawai#i Constitution may be broader in
scope than rights grounded in the United States Constitution. See, e.g.,
State v. Dixon, 83 Hawai#i 13, 23, 924 P.2d 181, 191 (1996) (stating that
“article I, section 7 of the Hawai#i Constitution provides broader protection
than the [F]ourth [A]mendment to the United States Constitution”).
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cause hearing on a TRO within fifteen days from the date the TRO
is granted (where service has been effected) unless there is a
substantial reason amounting to good cause for a delay.”); Kie v.
McMahel, 91 Hawai i 438, 441-42, 984 P.2d 1264, 1267-68 (App.
1999) (noting that under HRS § 586-5(b) the court must hold a
show cause hearing no later than fifteen days from the date the
TRO is granted). During that hearing, the petitioner has the
burden to prove the allegations in the petition by a
preponderance of the evidence. Id. at 442-43, 984 P.2d at 1268-
69.
The existence of exigent circumstances justifies
dispensing with the requirement of holding a hearing before the
ex parte TRO is granted. Cf. In re Guardianship of Carlsmith,
113 Hawai#i at 238-42, 151 P.3d at 720-23 (“TRO[s], in view of
[their] emergency remedial nature, may [constitutionally] be
granted ex parte[,]”) ([alteration] in original,) (Citing Luat v.
Cacho, 92 Hawai#i 330, 346, 991 P.2d 840, 856 (App. 1999)). The
availability of a prompt post-deprivation hearing (by way of a
show cause hearing), combined with the fact that the petitioner
retains the burden of proof during the hearing, ensures that the
respondent’s interests are adequately protected. See id.
(upholding constitutionality of ex parte TROs issued under
Hawai#i Family Court Rules Rule 65(b) where adverse party is
allowed to request post-deprivation hearing); Kie, 91 Hawai#i at
442, 984 P.2d at 1268 ("While at that hearing the respondent must
‘show cause why’ the protective order is not necessary, HRS
§ 586-5.5(a), the burden remains on the petitioner to prove the
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petitioner's underlying allegations by a preponderance of the
evidence."); Coyle v. Compton, 85 Hawai#i 197, 207, 940 P.2d 404,
414 (App. 1997) (upholding issuance of an ex parte TRO in a
domestic abuse situation against due process challenge). The ICA
therefore correctly concluded that the procedure for obtaining an
ex parte TRO under chapter 586 comports with due process. See
Hamilton III, 2011 WL 2611284, at *8-13. Petitioner apparently
does not quarrel with that conclusion in his Application.
B.
Petitioner argues, however, that at the show cause
hearing, there must be a standard by which courts can distinguish
abuse from discipline. The ICA concluded that chapter 586 did
not infringe upon Petitioner’s right to discipline his children
because that chapter only reaches abuse. Id. at *6. But the ICA
did not articulate what differentiates abuse from discipline or
what factors courts should consider in determining whether abuse
or discipline is involved.
Due process requires that the State provide meaningful
standards to guide the application of its laws. Cf. Kolender v.
Lawson, 461 U.S. 352, 358 (1983). Statutes must be defined “with
sufficient definiteness that ordinary people can understand what
conduct is prohibited.” State v. Beltran, 116 Hawai#i 146, 151,
172 P.3d 458, 463 (2007). Further, a law that “impermissibly
delegates basic policy matters to policemen, judges, and juries
for resolution on an ad hoc and subjective basis,” carries “the
attendant dangers of arbitrary and discriminatory application.”
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Grayned v. City of Rockford, 408 U.S. 104, 108-109 (U.S. 1972);
Beltran, 16 Hawai#i at 153, 172 P.3d at 465 (2007) (same).
As Petitioner contends, without some way of
distinguishing abuse from discipline, there is a danger that
chapter 586 will infringe on the right to discipline by ensnaring
parents who use corporal punishment properly to discipline their
children, see id. at 151, 172 P.3d at 463 (explaining that laws
must be sufficiently clear to allow the public to distinguish
between lawful and unlawful conduct), and that parents, as a
result, will refrain from disciplining their children for fear of
being subject to a TRO, cf. Brown v. Entm’t Merchants Ass’n, 131
S. Ct. 2729, 2743 (2011) (Alito, J., concurring) (explaining, in
context of First Amendment challenge, that due process requires
laws to give fair notice, and that vague laws compel people to
“steer far wider of the unlawful zone . . . than if the
boundaries of forbidden areas were clearly marked”) (internal
quotation marks and citations omitted). Absent standards to
guide courts in distinguishing discipline from abuse, there is
also a risk that courts will apply chapter 586 arbitrarily. See
State v. Gaylord, 78 Hawai#i 127, 138, 198 P.2d 1167, 1178 (1995)
(explaining that a statute will not be held unconstitutional by
reason of uncertainty if any sensible construction embracing the
legislative purpose may be given to the statute).
VI.
A.
In the criminal law context, there is already a
standard that our courts use to determine whether a parent has
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abused a child. HRS § 709-906(1) (1999)14 prohibits “physically
abus[ing] a family or household member.” However, HRS § 703-309
can be raised as a justification or defense against a charge
under HRS § 709-906. See State v. Matavale, 115 Hawai#i 149,
158-59, 166 P.3d 322, 331-32 (2007) (plurality opinion) (“When a
question of parental discipline is raised, the prosecution must
prove beyond a reasonable doubt that the parent’s . . . conduct
did not come within the scope of parental discipline as
prescribed in HRS § 703-309(1).”) As previously noted, under HRS
§ 703-309(1)(a) and (b), parents are permitted to use force
against minor children so long as:
(a) The force is employed with due regard for the age and
size of the minor and is reasonably related to the
purpose of safeguarding or promoting the welfare of
the minor, including the prevention or punishment of
the minor's misconduct; and
(b) The force used is not designed to cause or known to
create a risk of causing substantial bodily injury,
disfigurement, extreme pain or mental distress, or
neurological damage.
HRS §§ 709-906 and 703-309(1) have withstood attack on
the ground that they lack sufficient clarity as to the level of
force that may be used to discipline a minor. See State v.
Stocker, 90 Hawai#i 85, 95, 976 P.2d 399, 409 (1999); Crouser, 81
Hawai#i at 14-15, 911 P.2d at 734-35 (concluding that HRS §§ 703-
309(1) and 709-906 are not unconstitutionally vague) (same). In
Crouser, this court held that, “[a]lthough the legislature has
14
HRS § 709-906 provides in relevant part:
§ 709-906. Abuse of family or household members;
penalty. (1) It shall be unlawful for any person,
singly or in concert, to physically abuse a family or
household member or to refuse compliance with the lawful
order of a police officer under subsection (4).
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not exhaustively enumerated the specific injuries that would
constitute unjustified use of force[,] . . . HRS § 703-309(1)
gives the person of ordinary intelligence” notice as to the
conduct that is prohibited. 81 Hawai#i at 14-15, 911 P.2d at
734-35. Thus, “[t]he phrases (1) reasonably related to the
purpose of safeguarding or promoting the welfare of the minor,
(2) designed to cause or known to create a risk of causing (3)
substantial bodily injury, and (4) extreme pain or mental
distress” were held to be “sufficiently precise” to give parents
notice as to the amount of force that was considered excessive.
Id. at 15, 911 P.3d at 735.
Crouser was reaffirmed in Matavale, which explained
that “[i]n determining whether force is reasonable, the fact
finder must consider the child’s age, the child’s stature, and
the nature of the injuries inflicted.” Matavale, 115 Hawai#i at
164, 166 P.3d at 338. In other words, the fact finder should
consider “whether the force used was designed to cause or known
to create a risk of causing substantial bodily injury,
disfigurement, extreme pain or mental distress, or neurological
damage given the child’s age and size.” Id.
This court acknowledged that these factors were
“general in nature,” “place[d] a large amount of discretion with
the courts,” and concluded there was no “bright line that
indicates what, under all circumstances, is unreasonable or
excessive corporal punishment.” Id. at 165-66, 166 P.3d at 338-
39. The permissible degree of force would depend on “the child’s
physique and age, the misconduct of the child, the nature of the
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discipline, and all surrounding circumstances.” Id. This
court’s decisions would also provide guidance and would “serve to
illustrate the kind of conduct that clearly falls outside the
parameters of parental discipline.” Id. at 164 n.11, 166 P.3d at
337, n.11; see also State v. Kikuta, 125 Hawai#i 78, 90, 253 P.3d
639, 652 (2011) (in determining whether a parent’s use of force
was justified under HRS § 703-309 the trier of fact must consider
the child’s physique and age, the misconduct of the child, the
nature of the discipline, and all surrounding circumstances).
B.
The ICA rejected Petitioner’s argument that he should
be allowed to assert the parental discipline justification under
HRS § 703-309(1) as a defense to the TRO. Hamilton III, 2011 WL
2611284, at *7. The ICA explained that HRS § 703-309 does not
expressly or implicitly extend to civil proceedings for domestic
abuse. Id. The ICA implied that, in any event, the legislature
intended for chapter 586 to cover acts that were otherwise
privileged under 703-309(1). Id. (“The Legislature thus intended
the definition of acts constituting domestic violence for
purposes of TROs to be broader than those subjected to criminal
liability under the penal code.”).
It is true that the definition of “domestic violence”
under HRS § 586-1 encompasses conduct broader in nature than the
definition of physical abuse under HRS § 709-906. HRS § 586-1
also prohibits malicious property damage and threats of
infliction of harm, injury, or assault. See HRS § 586-1. On its
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face, HRS § 709-906 does not apply to either kind of conduct.
Therefore, the ICA was correct to point out that HRS § 586-1
reaches some conduct that is not criminalized under HRS § 709-
906.
The ICA also explained that the purpose of a TRO is to
prevent abuse rather than to punish past abuse. See Hamilton
III, 2011 WL 2611284, at *7 n.8, *13 n.17. The aim of chapter
586 is to provide emergency relief from imminent harm by assuring
a period of separation for the parties involved. See id. at *13
n.17 (“The Legislature has consistently affirmed the purpose of
ex parte TROs to prevent imminent violence by ‘assuring a period
of separation of the parties involved.’”) (quoting 1979 Haw.
Sess. Laws, Act 168, § 1 at 345-46; S. Stand. Com. Rep. No. 3252,
in 1998 Senate Journal, at 1314-15; H. Stand. Com. Rep. No. 578-
98, in 1998 House Journal, at 1264-65; HRS § 586-4(c)). The ICA
was therefore also correct that the goal of chapter 586 may be
different from that of HRS § 709-906.
However, as noted supra, the ICA also suggested that
chapter 586 might extend to conduct for which a parent could
otherwise assert the parental justification defense under HRS
§ 703-309. See Hamilton III, 2011 WL 2611284, at *7 n.8.
Respectfully, the ICA was not correct to imply that chapter 586
prohibited conduct that would constitute discipline rather than
abuse under HRS § 703-309. Otherwise, as Petitioner contends,
“the right to discipline” would have no meaning. See Crouser, 81
Hawai#i at 14, 911 P.2d at 734 (stating that a parent has a
“privilege to subject children to reasonable corporal
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punishment”). A parent would have the right to impose reasonable
discipline in a criminal case, but could not raise the same
justification in opposition to interference by the State with the
parent-child relationship in a civil setting.15 This would be an
inconsistent result, one that the ICA has already rejected in the
context of custody hearings. See Rezentes v. Rezentes, 88
Hawai#i 200, 206, 965 P.2d 133, 139 (App. 1998) (concluding that
“the term ‘family violence’ in HRS § 571-46(9) (1993) would not
extend to the type of physical discipline of a child by his or
her parent that is expressly permitted in HRS § 703-309(1)
[because] the legislature would [not] sanction in one statute the
use of certain physical force. . . and yet characterize in
another statute the use of such force as family violence,
potentially depriving a parent of custody or visitation.”).16
VII.
No standard has been announced in the civil law TRO
context that is parallel to the criminal law area to assist the
public and the courts in drawing the line between abuse and
discipline. As noted above, chapter 586 defines “domestic abuse”
15
Further, it should be noted that although no criminal sanctions
are imposed by a TRO, chapter 586 imposes criminal penalties for the violation
of a TRO. HRS § 586-11 (knowing violation of protective order is a
misdemeanor). The entry of a TRO could thus lead to criminal penalties.
16
The ICA contends that Rezentes is distinguishable in part because,
as opposed to a custody determination "which is made after a full hearing of
the issues" an "ex parte TRO is temporary in duration," "is intended to
provide immediate relief," and is based on "probable cause." Hamilton III,
2011 WL 2611284, at *7 n.8. However, the show cause hearing under HRS § 586-5
is one that affords "a full hearing on the issues." Moreover, to hold that
proper discipline under HRS § 703-309(1) constitutes abuse under HRS 568-1
would blur the distinction between discipline and abuse and subject parents to
inconsistent requirements for the same acts by making permissible conduct
under HRS § 703-309(1) unlawful under HRS § 586-1.
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as “physical harm, bodily injury, assault, or the threat of
imminent physical harm, bodily injury, or assault, extreme
psychological abuse or malicious property damage.” HRS § 586-1.
“Domestic abuse” is also defined as any act which would
constitute an offense under HRS § 709-906. Id.
In some, and perhaps even in many, cases, the terms
“physical harm,” “bodily injury,” and “assault” suffice to
distinguish abuse from permissible discipline. Since any act
that constitutes an offense under HRS § 709-906 also constitutes
“domestic abuse” under HRS § 586-1, for all practical purposes,
family courts may already be implicitly utilizing the factors set
forth in HRS § 703-309(1) to distinguish abuse from discipline.
A child’s age, stature, the nature of the force, the nature of
any injuries, and the proportionality of the punishment to the
child’s misconduct are the kinds of common sense considerations
that a court might reasonably take into account in determining
whether the force used by a parent amounts to abuse.
However, there is nothing in chapter 586 or in the
decisions of this court expressly recognizing a parental right to
employ discipline with respect to the show cause hearing under
HRS § 586-5(b) on the question of whether the TRO should be
continued. As noted before, in the absence of such a standard,
courts may construe chapter 586 too broadly and, in doing so,
violate a parent’s constitutional right to discipline his or her
child. Cf. Rezentes, 88 Hawai#i at 206, 965 P.2d at 139.
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VIII.
Petitioner asks this court to hold that a parent has a
right to use reasonable force to discipline a child, and requests
that we articulate a standard that family courts may apply in
evaluating whether a parent’s conduct amounts to abuse under
chapter 586.24. The ICA did not squarely decide what standard
should govern because it seemingly believed chapter 586 subsumed
parental discipline permitted under HRS § 703-309.17 See Hamilton
III, 2011 WL 2611284, at *7-8 (stating that the legislature
intended definition of acts constituting domestic violence to be
broader than those subjected to liability under the criminal
code). However, it is not necessary to import the express
provision of HRS § 703-309(1) into HRS § 586-5 TRO show cause
hearings.18
17
Although the ICA stated that the court “concluded that even if the
defense [in HRS § 703-309] were available,” Petitioner’s “use of force was not
reasonably related to safeguarding or promoting Minor’s welfare,” see Hamilton
III, 2011 WL 2611284, at *8, the court seemed uncertain as to the scope of HRS
§ 586-1. While not entirely clear, it appears that during the hearing, the
court believed that Petitioner was permitted to discipline Minor if she was
involved in conduct that was particularly egregious, such as using illegal
drugs, but that Petitioner could not discipline his daughter for other
misbehavior. The court also thought that HRS § 703-309(1) was “relevant,” but
that Petitioner could not take advantage of it because Mother had sole legal
custody of Minor. In contrast, in its written conclusions, the court stated
that it was not “proper parental discipline” for Petitioner to strike his
daughter for “her refusal to discuss [the birth control] issue late during a
school night.” The court also stated, however, that HRS § 703-309 “applies to
criminal[,] not civil[,] actions.” It cannot be said then that the court
applied HRS § 703-309(1) in reaching its decision.
18
In oral argument, Respondent implied that HRS § 703-301(2) (1972)
may prohibit a justification defense such as the parental discipline defense
under HRS § 703-309 from being imposed in civil proceedings under HRS chapter
586. That section states that “[t]he fact that conduct is justifiable under
this chapter [(HRS chapter 703)] does not abolish or impair any remedy for
such conduct which is available in any civil action.” HRS § 703-301(2).
However, generally it would appear that HRS § 703-301(2) was intended to
indicate that a justification defense does not affect remedies such as those
that might flow from civil or private wrongs resulting in tort claims. See
HRS § 703-301 cmt. (“For example, unreasonable conduct on the part of the
defendant might suffice for civil liability whereas criminal liability will
(continued...)
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A.
Reasonableness is the standard that has long been
employed by the states in the area of parental discipline. See
Doriane Lambelet Coleman, et. al., Where and How to Draw the Line
Between Reasonable Corporal Punishment and Abuse, 73-SPG Law &
Contemp. Probs. 107, 137 (2010) [hereinafter, Where and How to
Draw the Line] (“[S]tates have long provided parents with an
exception to tort and criminal-law prohibitions against physical
assaults when they can establish a disciplinary motive for the
assault and when the assault itself is ‘reasonable.’ Twentieth-
century case law is thus replete with holdings like this one: ‘A
parent has the right to punish a child within the bounds of
moderation and reason, so long as he or she does it for the
welfare of the child.’”) (citing cases); see also Restatement
(Second) of Torts § 147 (1965) (based on survey of states, “[a]
parent is privileged to apply such reasonable force or to impose
such reasonable confinement upon his child as he reasonably
believes is necessary for [his child’s] proper control, training,
or education”); G.C. v. R.S., --- So.3d ---, 2011 WL 4104731, at
*2 (Fla. App. Sept. 16, 2011) (“The common law recognize[s] a
parent’s right to discipline his or her child in a reasonable
manner.”) (internal quotation marks and citations omitted); State
v. Bell, 223 N.W.2d 181, 184 (Iowa 1974) (“Parents have a right
to inflict corporal punishment on their child, but that right is
18
(...continued)
turn on the defendant's own subjective mental state.”) (Emphasis added.) In
any event, the right of parental discipline in the context of TRO proceedings
stems from the constitution, not from the express provisions of HRS § 703-309.
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restricted by moderation and reasonableness.”); State v. Thorpe,
429 A.2d 785, 788 (R.I. 1981) (“[A] parent has a right to use
reasonable and timely [corporal] punishment as may be necessary
to correct faults in his/her growing children.”); Diehl v.
Commonwealth, 385 S.E.2d 228, 230 (“It is settled in Virginia
that while a parent has the right to discipline his or her child
the punishment must be within the bounds of moderation.”); Where
and How to Draw the Line, 73-SPG Law & Contemp. Probs. at 117
n.37 (“Even in states that lack physical-discipline exceptions
within their family or juvenile-court codes, courts have
recognized a parent’s physical-discipline privilege based on a
statutory privilege found in the criminal code or a common-law
privilege.”) (Citing Lovan C. v. Dep’t of Children & Families,
860 A.2d 1283, 1288 (Conn. App. 2004); In re W.G., 349 N.W.2d
487, 487 (Iowa 1984)).
B.
Reasonableness is also the standard used when
considering whether a domestic violence injunction has been
erroneously granted. See G.C., --- So.3d ----, 2011 WL 4104731
at *1-2. (holding that domestic violence injunction was not
warranted because parents have a common law right to administer
reasonable and non-excessive discipline and father’s conduct was
reasonable); Simons v. State Dep’t of Human Servs., 803 N.W.2d
587, 592-95 (N.D. 2011) (holding in context of statute
authorizing agency to remove abused children from homes that
parents may use reasonable force to discipline their children);
see also P.W v. D.O, 591 S.E.2d 260, 265-67 (W. Va. 2003)
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(concluding that child was not “physically harmed” for purposes
of obtaining temporary domestic violence order when parent
spanked child but left no bruises).
IX.
The formulations for determining whether a parent’s
conduct is reasonably related to discipline vary among the
states, but they are more similar than not. Based on a survey of
authorities, Restatement (Second) of Torts § 150 (1965) provides
as follows:
In determining whether force or confinement is
reasonable for the control, training, or education of
a child, the following factors are to be considered:
(a) whether the actor is a parent;
(b) the age, sex, and physical and mental condition of the
child;
(c) the nature of his offense and his apparent motive;
(d) the influence of his example upon other children of
the same family or group;
(e) whether the force or confinement is reasonably
necessary and appropriate to compel obedience to a
proper command;
(f) whether it is disproportionate to the offense,
unnecessarily degrading, or likely to cause serious or
permanent harm. 19
States consider essentially the same factors. For
example, in Connecticut, “[i]n a substantiation of abuse hearing
. . . the hearing officer must determine whether the punishment
was reasonable and whether the parent believed the punishment was
necessary to maintain discipline or promote the child’s welfare.”
Lovan C., 860 A.2d at 1289. “The hearing officer must assess the
reasonableness of the punishment in light of the child’s
misbehavior and the surrounding circumstances, including the
parent’s motive, the type of punishment administered, the amount
19
The factors are not exclusive. See Restatement (Second) of Torts
§ 150 (1965) cmt. a.
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of force used and the child’s age, size and ability to understand
the punishment.” Id. Several other courts have identified
similar circumstances, such as “the age, size, sex, and physical
condition of both child and parent, the nature of the child’s
misconduct, the kind of marks or wounds inflicted on the child’s
body, the nature of the instrument used for punishment, etc.”
State v. Singleton, 705 P.2d 825, 827 (Wash. App. 1985) (citing
cases).
The factors considered by other states are coextensive
with the test employed by Hawai#i in the context of the criminal
parental discipline defense. We hold that the appropriate
standard for family courts to apply in contested HRS chapter 586
show cause hearings is whether the parent's discipline is
reasonably related to the purpose of safeguarding or promoting
the welfare of the minor. In applying such a standard, the
surrounding circumstances, including factors such as the nature
of the misbehavior, the child’s age and size, and the nature and
propriety of the force used, have been universally considered and
should also guide the courts in this state.
X.
Petitioner argues that the court and the ICA improperly
assumed that his actions constituted abuse. The ICA concluded
that it was not an abuse of discretion, in light of the three
incidents of abuse alleged, for the court to conclude that abuse
had occurred. However, in its findings and conclusions the court
based its decision only on the single incident in which Minor
alleged that Petitioner hit her “a couple of times” and that he
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was trying to slap her on the face but that she blocked his
blows. None of the parties or the courts had the benefit of the
standard for parental discipline to apply, as set forth supra,
for purposes of the October 5, 2005 HRS § 586-5 show cause
hearing. Accordingly, the case must be remanded to the court for
application of that standard.20
XI.
In his second question, Petitioner asks this court to
determine whether a non-custodial parent has a residual parental
right to discipline during unsupervised visitation.
A.
Initially, Petitioner contends that the ICA erred in
failing to take judicial notice of the documents pertaining to
the custody case, UCCJ No. 98-0028. However, the ICA’s refusal
to take the custodial documents into account had no bearing on
the ICA’s decision because, as explained infra, the ICA refused
to consider whether Petitioner retained a residual parental right
to discipline Minor. See Hamilton III, 2011 WL 2611284, at *14
n.20.
Petitioner filed a motion with this court requesting
that we take judicial notice of the custody case records. On
December 7, 2011, we granted the motion with respect to Exhibit B
20
It is not entirely clear whether the court concluded that
Petitioner struck Minor for helping her friend in the birth control incident
that Minor had already discussed with Mother, or instead because Minor was
attempting to leave when Petitioner sought to speak to her. See discussion
supra. In any event, whether the conduct by Petitioner was appropriate
discipline in each incident should be left initially to the family court,
inasmuch as those determinations are necessarily fact-bound, and will depend
on the custodial arrangement of the parties and on the circumstances of the
particular case.
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(Ex B), titled "Stipulated Order for Post-Decree Relief Re
Plaintiff's Motion and Affidavit for Post-Decree Relief Filed
February 1, 1999, and Defendant's Motion and Affidavit for
Post-Decree Relief Filed March 5, 1999," filed on September 22,
1999, and with respect to Exhibit A (Ex A), titled "Order Re
Defendant's Motion for Post Decree Relief Filed on 4/26/02 and
Plaintiff's Motion for Post Decree Relief Filed on 5/17/02,"
filed on August, 27, 2003. Taking judicial notice of the custody
documents establishes that Petitioner had visitation rights with
Minor even though Mother had sole legal custody.
B.
Petitioner also contends that his case is not moot.
Although at this point Petitioner’s daughter has reached the age
of eighteen and the TRO has expired, as was the case when
Petitioner was last before this court, “there is [still] a
‘reasonable probability’ that the family court’s issuance of the
TRO against [Petitioner], which was based on its findings and
conclusions that [Petitioner] abused his daughter, will cause
harm to [Petitioner’s] reputation.” Hamilton II, 119 Hawai#i at
11, 193 P.3d at 849 (rejecting contention that Petitioner’s claim
was moot after TRO expired and Mother was awarded full custody
because Petitioner still had reputational interest to protect).
Hence, Petitioner retains an interest in resolving whether the
TRO should have been continued after the hearing.21
21
Petitioner also contends that “the ICA’s errors perpetuated
continuing collateral consequences” because during the pendency of the TRO,
Mother was given sole legal and physical custody over Minor, which Petitioner
was unable to modify because of the TRO. Because this court has already held
(continued...)
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C.
Petitioner argues that the ICA erred in agreeing with
the court that Petitioner did not have the right to discipline
Minor. However, the ICA did not reach the issue. The ICA
stated:
[Petitioner] also challenges the Family Court’s
conclusion that “discipline over issues of morals lies
with [Mother], who has sole legal and physical
custody.” Given our ultimate conclusion that the
Family Court did not abuse its discretion in issuing
the Ex Parte TRO . . . we need not address this point.
Hamilton III, 2011 WL 2611284, at *7 n.6. In her answering brief
to the ICA, Respondent argued that HRS § 571-222 allows only the
custodial parent to discipline the child, and does not permit the
non-custodial parent to impose discipline. In oral argument,
Respondent also referred to the provisions of the custody
21
(...continued)
that the reputational consequences of the grant of the TRO were sufficient to
prevent the case from becoming moot, see Hamilton II, 119 Hawai#i at 11, 193
P.3d at 849, there is no need for this court to consider Petitioner’s argument
that the TRO also made it impossible for him to modify the award of custody to
Mother.
22
HRS § 571-2 (1993) entitled “Definitions,” provides in relevant
part as follows:
“Legal custody” means the relationship created by
the court’s decree which imposes on the custodian the
responsibility of physical possession of the minor and
the duty to protect, train, and discipline the minor and
to provide the minor with food, shelter, education, and
ordinary medical care, all subject to residual parental
rights and responsibilities and the rights and
responsibilities of any legally appointed guardian of
the person.
. . . .
“Residual parental rights and responsibilities”
means those rights and responsibilities remaining with
the parent after the transfer of legal custody or
guardianship of the person, including, but not
necessarily limited to, the right to reasonable
visitation, consent to adoption or marriage, and the
responsibility for support.
(Emphases added.)
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documents for this proposition.23 Respondent argued that because
the term “legal custody” is defined to include the responsibility
to discipline, and the term “residual parental right” does not, a
non-custodial parent with residual parental rights does not enjoy
the right to discipline.
However, Respondent’s argument was already considered
and subsumed in Stocker, 90 Hawai#i at 93-94, 976 P.2d at 407-08.
The Stocker court held that a “‘custodial’ parent normally has
reserved to him or her the sole authority and duty to
‘discipline’ a child,” pursuant to HRS § 571-2. Id. This court
recognized that the definition of “residual parental rights” in
HRS § 571-2 did not expressly include the right to discipline,
but explained that the rights listed in the definition were not
exclusive. Id. Therefore, Stocker held that a non-custodial
parent, “acting within his court-prescribed unsupervised
visitation time, retains [a] ‘residual parental right’ . . . to
discipline a child with respect to that child’s conduct during
the visitation period.” Id. at 94, 976 P.2d at 408 (internal
citation omitted). Consequently, “[a] contrary holding would
lead to the absurdity that a non-custodial parent, alone with his
child during an authorized visitation period, would be powerless
23
Respondent referred to provisions (1) in Ex A, which states that
Respondent “shall have sole legal custody of the children," and that
"[Respondent shall consult with [Petitioner] on all legal custody decisions,”
and (2) in Ex B that "[for] major decisions . . . the parties shall confer in
unity . . . including . . . the manner in which the children shall be
disciplined . . . [and] the visitation schedule for [Petitioner]." On their
faces, nothing in these provisions governed the particular circumstances of
the events of August 25, 2005, nor directly conflicted with the provision
under HRS § 571-2, that Petitioner “retain[ed] as a ‘residual parental right,’
. . . the authority to discipline a child with respect to that child's conduct
during the visitation period.” Stocker, 90 Hawai#i at 94, 976 P.2d at 408.
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to employ the use of force against the child, even if such force
were reasonably necessary to ‘promote’ the child’s ‘welfare.’”
Id.
Stocker was decided in the context of the parental
discipline defense under HRS § 703-309(1), but the rationale
applies equally here. It would be inconsistent to say that a
non-custodial parent retains the right to use reasonable force to
discipline a child for purposes of a criminal prosecution but not
for purposes of a civil proceeding. Parents with visitation
rights are responsible for the supervision of their children
while the child is with them. See id. Consequently, the
responsibility to supervise must also include the ability to
discipline the child when the child is in the physical custody of
the parent--whether the parent has full legal custody or
visitation rights. See id. In this case, no party before the
court disputed that Petitioner had visitation rights with Minor.
Yet the court was unsure of whether Petitioner had the right to
discipline Minor. We conclude that a non-custodial parent
retains the right to discipline his or her child for conduct that
occurs while the child is under the supervision of the non-
custodial parent.24
24
However, the family court retains discretion in any particular
case to specifically prohibit corporal punishment by a non-custodial parent as
the circumstances may reasonably warrant.
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XII.
For the foregoing reasons, we vacate the September 21,
2011 ICA judgment and the court’s October 5, 2005 Order Regarding
Temporary Restraining Order. We remand the case to the
court for application of the standard for parental discipline
consistent with this opinion.
Robert H. Thomas and /s/ Paula A. Nakayama
Rebecca A. Copeland
(Damon Key Leong /s/ Simeon R. Acoba, Jr.
Kupchak Hastert)
for petitioner/ /s/ James E. Duffy, Jr.
defendant-appellant.
/s/ Sabrina S. McKenna
Stephen T. Hioki
for respondent/ /s/ Virginia L. Crandall
plaintiff-appellee.
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