Although the focus of this blog is land use and related topics, our practice involves more than that -- we also take appeals in other areas of law presenting unsettled or untested questions. Here's the latest example, a case that asks what standards govern the Family Court's evaluation of an application for a civil TRO in light of a parent's fundamental right to discipline his or her children (which includes the right to use reasonable corporal punishment).
In Hamilton v. Lethem, No. 27580 (Haw. Ct. App. June 30, 3011), the Hawaii Intermediate Court of Appeals concluded that the TRO process did not violate a parent's rights, and affirmed the Family Court's issuance of a restraining order. Earlier this week, the Hawaii Supreme Court agreed to review these Questions Presented:
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 child during a period of unsupervised visitation, including the right to discipline the child for morals?
This case has been to the Hawaii Supreme Court before. In Hamilton v. Lethem, 193 P.3d 839 (Haw. 2008), the court held that the issues were not mooted by the expiration of the TRO, because the "collateral consequences" of a TRO.
More here from Damon Key colleague Rebecca Copeland. The cert application (in Hawaii's appellate system, petitioners "apply" for cert review, which is either "accepted" or "rejected") we filed is available below.
Application for a Writ of Certiorari, Hamilton v Lethem, No. 27570 (Haw S Ct filed Oct 14, 2011)
