HAWSCT New Cert Grant: Evaluating Parental Discipline In Civil TRO Cases

by Robert Thomas, Inverse Condemnation, Nov 25, 2011

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)

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HAWSCT Grants Cert in Civil Case Involving Parental Discipline Defense

by Rebecca Copeland, Record on Appeal, Nov 23, 2011

Today, November 23, 2011, the Hawaii Supreme Court granted cert in Lily E. Hamilton v. Christy L. Lethem, S.C. No. 27580, essentially involving the issue of whether the Father (Christy L. Lethem) should have been afforded some form of parental discipline defense in a civil ex parte temporary restraining order proceeding. Disclaimer: this blogger along with her colleague Robert H. Thomas (www.inversecondemnation.com) represent Mr. Lethem on cert.

The ICA affirmed the Family Court of the First Circuit's ex parte temporary restraining order.

On cert, Mr. Lethem argues that the ICA gravely erred because:

(1) the court failed to apply a discernible standard to the line between constitutionally protected parental discipline and abuse and instead presumed Father's act of discipline was abuse, and

(2) the court failed to give effect to Father's statutory "residual parental right" to discipline his child.

The order accepting cert is available here.

The cert application is available here.

No response by Mother was filed.

A motion for judicial notice was also filed here.

Chief Justice Recktenwald recused himself here, and First Circuit Court Judge Virginia L. Crandall was assigned to sit in his place here.

Oral arguments to be announced.