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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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