Parent's Constitutional Right to Spank Kids a Defense in TRO Hearing

Hamilton v. Lethem (HSC February 2, 2012)

Background. Lily Hamilton filed an ex parte petition for a temporary restraining order on behalf of her daughter, Amber. The TRO was filed against Christy Lethem, the father, and prohibited any contact with Amber. The TRO was granted.

At the hearing, Amber testified about the three incidents. First, she testified that Lethem hit her because she lied to him. She said that he tried to hit her face, but she blocked him with her hand. In the second incident, Amber said that she started arguing with Lethem when he hit her. Amber went to her room and Lethem said, "Don’t make me do that again." As to the third incident, Amber testified that Lethem went to her school, pulled her out of class, and blamed her for financial problems. He also said that he was going to pull her out of school and that her younger sister was better than her.

Lethem testified at the hearing. He admitted that he had had a strained relationship with Hamilton and that they often argued because Amber was misbehaving. He spoke about the three incidents. He said that he never hit his daughter in the face, but did admit to hitting her shoulder in order to discipline her. As to the second incident, Lethem said that he was arguing with Amber and she tried to stand up and walk away from him. That was when he reached over and had her sit back down. He denied threatening to hit her. As to the third incident, Lethem denied blaming financial problems on his daughter.

The family court concluded that the parental discipline from the Hawai'i Penal Code, HRS § 703-309, was relevant and might extend to these proceedings. But the family court ruled that it need not examine that issue. The family court kept the TRO in place for 90 days. Lethem appealed and the ICA initially refused to hear the case on mootness grounds. However, the HSC, in Hamilton v. Lethem, 119 Hawai'i 1, 193 P.3d 839 (2008), introduced the collateral consequences exception to mootness and ordered the ICA to resolve the issues raised. The ICA, in a published opinion, held that the parental discipline defense does not apply to family court TRO proceedings and that the TRO statutes and procedure in HRS Chapter 586 did not infringe on the constitutional right to raise children. Lethem appealed again.

The Right to Discipline Children is Guaranteed in the Hawai'i Constitution. A parent's constitutional interest in the care, custody, and control of his or her children includes the right to discipline their children. In re Doe, 99 Hawai'i 522, 532, 57 P.3d 447, 457 (2002); Troxel v. Granville, 530 U.S. 57, 65 (2000). According to the HSC, this right would encompass corporal punishment. Ingraham v. Wright, 430 U.S. 651, 661 (1977) ("Professional and public opinion is sharply divided on the practice . . . , and has been for more than a century. Yet we can discern no trend toward its elimination."); see also State v. Crouser, 81 Hawai'i 5, 14, 911 P.2d 725, 734 (1996) (in criminal prosecutions, "parents have a privilege to subject children to reasonable corporal punishment"). Here, the HSC expressly held that "the right to discipline is therefore inherent in the right to care, custody, and control one's children, as guaranteed by the Hawai'i Constitution."

The TRO Procedures under HRS Chapter 586. The HSC began with the ICA's holding that the TRO procedures did not violate the due process clauses of the state and federal constitutions. Here's how the TRO family court procedure works. A petitioner files for an ex parte TRO and one will be granted upon a showing of probable cause that "a past act or acts of abuse have occurred, or that the threats of abuse make it probable that acts of abuse may be imminent." HRS § 586-4(c). The family court has fifteen days to hold a hearing on the TRO to determine whether it should remain in force or extended "unless there is a substantial reason amount to good cause for a delay." Styke v. Sotelo, 122 Hawai'i 485, 491, 228 P.3d 365, 371 (App. 2010). At the hearing, the petitioner has the burden of proof the allegations by a preponderance of the evidence. Kie v. McMahel, 9 Hawai'i 438, 442-43, 984 P.2d 1264, 1267-68 (App. 1999).

"Domestic Violence" in a TRO Hearing Infringes Upon a Parent's Right to Discipline Children. A TRO is granted when there is evidence of "domestic violence." This term includes "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. Due process requires that statutes have "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). Moreover, a statute cannot "delegate[] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis" because it leads to "attendant dangers of arbitrary and discriminatory application." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). Lethem argued that "domestic abuse" under the TRO statutes is too broad and infringes upon a parent's right to discipline his or her children. Thus, Lethem urged the HSC to extend the parental discipline defense from the Hawai'i Penal Code (HRS § 703-309) as a defense in family court TRO proceedings.

Introducing the Reasonable Parental Discipline Defense in TRO Proceedings. The HSC didn't go that far. Surveying case law from across the country and the Restatement of Torts, the HSC noted that the parental discipline defense is based on reasonableness. In other words, parents may use reasonable force that is necessary to correct a child's errant behavior. The HSC, thus, held "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 this standard, the HSC noted that the family court should note the surrounding circumstances like the nature of the misbehavior, the child's age and size, and the nature and propriety of the force used. The record is not clear whether Lethem's conduct could be reasonable parental discipline so the HSC remanded the case to the family court for resolution.

Who has Custody is Irrelevant; Non-custodial Parents have the Right to Discipline too. The HSC, with the new standard, also addressed whether the defense was limited to parents. A non-custodial parent has the right to discipline his or her children too. The HSC noted that the parental discipline defense in a criminal prosecution extended to non-custodial parents when the conduct occurred during visitation times. State v. Stocker, 90 Hawai'i 85, 94, 911 P.2d 399, 408 (1999). Here, the HSC extended the Stocker logic to HRS chapter 586 proceedings. According to the HSC, "[i]t would be inconsistent to say that a non-custodial parent retains the right to use reasonable force to discipline a child" in a criminal proceeding, but not in a civil one.

So what About Other Defenses for TROs? This case extends the parental discipline (essentially) that is a defense in criminal cases to civil TRO proceedings in the family court. Does this invite the court to examine whether other defenses available in criminal prosecutions can be used in TRO proceedings? What about simple self-defense? Is that a defense that can be raised now? Perhaps the distinction in that question lies in the constitutional dimension of a parent's right to discipline. But then that leads to another question: does a person have a constitutional right to defense himself or herself from physical harm? Is that necessary in order to raise self-defense at a TRO hearing?