586-4 Temporary restraining order. (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.

The ex parte temporary restraining order may also enjoin or restrain both of the parties from taking, concealing, removing, threatening, physically abusing, or otherwise disposing of any animal identified to the court as belonging to a household, until further order of the court.

(b) For any person who is alleged to be a family or household member by virtue of a dating relationship, the court may consider the following factors in determining whether a dating relationship exists:

(1) The length of the relationship;

(2) The nature of the relationship; and

(3) The frequency of the interaction between the parties.

(c) The family court judge may issue the ex parte temporary restraining order orally, if the person being restrained is present in court. The order shall state 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. The order further shall state that the temporary restraining order is necessary for the purposes of: preventing acts of abuse or preventing a recurrence of actual domestic abuse and ensuring a period of separation of the parties involved. The order shall also describe in reasonable detail the act or acts sought to be restrained. Where necessary, the order may require either or both of the parties involved to leave the premises during the period of the order; may also restrain the party or parties to whom it is directed from contacting, threatening, or physically abusing the applicant's family or household members; and may enjoin or restrain both parties from taking, concealing, removing, threatening, physically abusing, or otherwise disposing of any animal identified to the court as belonging to a household, until further order of the court. The order shall not only be binding upon the parties to the action, but also upon their officers, agents, servants, employees, attorneys, or any other persons in active concert or participation with them. 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;

(3) Entering or visiting the protected party's residence; or

(4) Taking, concealing, removing, threatening, physically abusing, or otherwise disposing of any animal identified to the court as belonging to a household, until further order of the court.

(d) If a divorce or a child custody proceeding is pending, a petition for a temporary restraining order may be filed in that same proceeding to the extent practicable. Any decree or order issued in a divorce or child custody proceeding subsequent to the petition being filed or an order being issued pursuant to this section, in the discretion of the court hearing the divorce or child custody proceeding, may supersede in whole or part the orders issued pursuant to this section. The factual findings and rulings made in connection with the granting or denying of a temporary restraining order may not have binding effect in any other family court proceeding, including child custody determinations under section 571-46, and the court in such proceedings may give de novo consideration to the facts and circumstances alleged in making later determinations affecting the parties, including determination of custody and visitation.

(e) When a temporary restraining order is granted and the respondent or person to be restrained knows of the order, a knowing or intentional violation of the restraining order is a misdemeanor. A person convicted under this section shall undergo domestic violence intervention at any available domestic violence program as ordered by the court. The court additionally shall sentence a person convicted under this section as follows:

(1) Except as provided in paragraph (2), for a first conviction for a violation of the temporary restraining order, the person shall serve a mandatory minimum jail sentence of forty-eight hours and be fined not less than $150 nor more than $500; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine;

(2) For a first conviction for a violation of the temporary restraining order, if the person has a prior conviction for any of the following felonies:

(A) Section 707-701 relating to murder in the first degree;

(B) Section 707-701.5 relating to murder in the second degree;

(C) Section 707-710 relating to assault in the first degree;

(D) Section 707-711 relating to assault in the second degree;

(E) Section 707-720 relating to kidnapping;

(F) Section 707-721 relating to unlawful imprisonment in the first degree;

(G) Section 707-730 relating to sexual assault in the first degree;

(H) Section 707-731 relating to sexual assault in the second degree;

(I) Section 707-732 relating to sexual assault in the third degree;

(J) Section 707-733.6 relating to continuous sexual assault of a minor under the age of fourteen years;

(K) Section 707-750 relating to promoting child abuse in the first degree;

(L) Section 708-810 relating to burglary in the first degree;

(M) Section 708-811 relating to burglary in the second degree;

(N) Section 709-906 relating to abuse of family or household members; or

(O) Section 711-1106.4 relating to aggravated harassment by stalking;

and if any of these offenses has been committed against a family or household member as defined in section 586-1, the person shall serve a mandatory minimum term of imprisonment of fifteen days and be fined not less than $150 nor more than $600; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine; and

(3) For the second and any subsequent conviction for a violation of the temporary restraining order, the person shall serve a mandatory minimum jail sentence of thirty days and be fined not less than $250 nor more than $1,000; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine.

Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.

The court may suspend any jail sentence, except for the mandatory sentences under paragraphs (1), (2), and (3) upon condition that the defendant remain alcohol and drug-free, conviction-free, or complete court-ordered assessments or intervention. Nothing in this section shall be construed as limiting the discretion of the judge to impose additional sanctions authorized in sentencing for a misdemeanor.

(f) Any fines collected pursuant to subsection (e) shall be deposited into the spouse and child abuse special account established under section 601-3.6. [L 1982, c 123, pt of 2; am L 1985, c 136, 2; am L 1987, c 315, 2; am L 1992, c 290, 2; am L 1998, c 172, 2; am L 1999, c 200, 1; am L 2000, c 186, 4; am L 2005, c 242, 1; am L 2008, c 180, 1, 8; am L 2009, c 11, 19 and c 159, 1; am L 2012, c 206, 1]

 

Rules of Court

 

Restraining orders, see HFCR rule 65.

 

Case Notes

 

Hawaii violation for breach of a protective order is not similar to contempt of court for sentencing purposes. 631 F.3d 1021 (2011).

The provisions of an unexpired temporary restraining order issued pursuant to this section remain in effect until modified or set aside; where provisions of the temporary restraining order were not modified or set aside, the factual basis for the temporary restraining order was not subject to collateral attack at the criminal trial charging defendant with violation of the temporary restraining order. 96 H. 402, 31 P.3d 915 (2001).

A chapter 586 protective order does not unconstitutionally curtail a person's freedom of movement. 85 H. 197 (App.), 940 P.2d 404 (1997).

Although the purpose of a temporary restraining order under this section is to prevent domestic abuse, the plain and obvious purpose of the subsection (d) misdemeanor is to prevent violations of a temporary restraining order; thus, although defendant's contact with complainant was brief and defendant drove off after being reminded of the temporary restraining order, the contact was not de minimus under 702-236. 107 H. 67 (App.), 109 P.3d 708 (2005).

There was sufficient evidence that defendant knew what the temporary restraining order prohibited and that defendant intentionally or knowingly contacted complainant in the car. 107 H. 67 (App.), 109 P.3d 708 (2005).

Trial court's jury instructions on the charged offenses of violating a temporary restraining order (TRO) under subsection (e) were prejudicially erroneous and misleading, where, in addition to deviating from the language of subsection (e), the jury instructions implied that as long as defendant was personally served with the TROs and intentionally or knowingly engaged in conduct prohibited by the TROs, defendant could be found guilty of violating the TROs even if it was not defendant's conscious object to violate the TROs and defendant was not aware that defendant's conduct violated the TROs. 114 H. 518 (App.), 164 P.3d 776 (2007).

Family court did not err in issuing the ex parte temporary restraining order and allowing it to remain in force until its expiration where father's threat to hit minor again, in conjunction with the two prior acts of physical harm as well as the allegation of recent psychological abuse, gave rise to a reasonable conclusion that the risk of further harm persisted and that a period of separation was necessary to prevent imminent harm. 125 H. 330 (App.), 260 P.3d 1148 (2011).

The process for obtaining an ex parte temporary restraining order under chapter 586 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).

 

 

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