CHAPTER 586

DOMESTIC ABUSE PROTECTIVE ORDERS

 

Part I. General Provisions

Section

586-1 Definitions

586-2 Court jurisdiction

586-3 Order for protection

586-4 Temporary restraining order

586-5 Period of order; hearing

586-5.5 Protective order; additional orders

586-5.6 Effective date

586-5.8 Transfer or release of domestic abuse victims

from shared wireless plans

586-6 Notice of order

586-7 Assistance of police in service or execution

586-8 Right to apply for relief

586-9 Modification of order

586-10 Copy to law enforcement agency

586-10.5 Reports by the department of human services;

court responsibilities

586-11 Violation of an order for protection

586-12 Mutual protective orders

 

Part II. Foreign Protective Orders

586-21 Foreign protective orders

586-22 Valid protective order

586-23 Filing of foreign protective order

586-24 Enforcement of foreign protective orders

586-25 Good faith immunity

586-26 Penalties

 

Cross References

 

Dependent adult protective services, see 346-221 to 253.

Domestic violence fatality review, see 321-471 to 476.

Domestic violence victims, early termination of tenancy and other rights, see 521-80 to 521-82.

 

Law Journals and Reviews

 

Hamilton v. Lethem: The Parental Right to Discipline One's Child Trumps a Child's Right to Grow Up Free from Harm. 36 UH L. Rev. 347 (2014).

 

Case Notes

 

A protective order under this chapter does not unconstitutionally curtail a person's freedom of movement. 85 H. 197 (App.), 940 P.2d 404.

No equal protection violation for use of preponderance of evidence standard of proof for 586-5.5 as family and household members not suspect class and rational basis underlying this standard adopted by legislature under chapter 571 for this chapter was to facilitate and expedite judicial issuance of protective orders. 85 H. 197 (App.), 940 P.2d 404.

Under 571-14(a)(8) and 571-42, family court is vested with exclusive jurisdiction over proceedings under this chapter and applicable standard of proof to be applied in those proceedings is preponderance of the evidence. 85 H. 197 (App.), 940 P.2d 404.

Unless expressly permitted by the court, 134-7(f) unqualifiedly prohibits a person subject to an order under this chapter from possession and control of a firearm during the pendency of that order; this prohibition is effective irrespective of whether the respondent owned the firearms involved. 91 H. 438 (App.), 984 P.2d 1264.

Pursuant to this chapter, absent special circumstances, the family court should not be involved in any stage of the prosecution of an allegation of a knowing or intentional violation of a protective order by an adult person, including the stage where the allegations are referred to the police or the prosecutor, other than to simply advise interested parties that the proper place to present such allegations is to the police or the prosecutor, not to the family court. 99 H. 363 (App.), 55 P.3d 856.

The constitutional right to discipline is inherent in the right to care, custody, and control of one's children; due process requires the State provide meaningful standards to guide the application of its laws; the appropriate standard for family courts to apply in contested 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 standard, circumstances, including factors such as the nature of the misbehavior, the child's age and size, and nature and propriety of the force used, should also guide the courts in this State. 126 H. 294, 270 P.3d 1024 (2012).

The process for obtaining an ex parte temporary restraining order under this chapter did not fall short of the constitutional requirements of procedural due process where the strength of the State's and petitioner's interests, the "emergency nature of the decision", and the "practical difficulties inherent in convening an immediate evidentiary hearing" mitigated against requiring further procedural protections. 125 H. 330 (App.), 260 P.3d 1148 (2011).

This chapter is not unconstitutional, as the right of parents to discipline their children is not unlimited; as parents do not possess a fundamental right to inflict force or harm upon a child that the legislature has deemed to be excessive and harmful to the child's welfare, a rational basis review applied to this chapter; under that review, ex parte TROs under this chapter were rationally related to the legitimate state interest in protecting minors from physical and psychological harm. 125 H. 330 (App.), 260 P.3d 1148 (2011).

 

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