So held the Hawaii Supreme Court, in Hamilton ex rel. Lethem v. Lethem (Haw. Feb. 7, 2012), interpreting the Hawaii Constitution, though in reasoning that could be seen as applicable to the federal Constitution and to other state constitutions. And the court concluded that even a noncustodial parent retains this right “with respect to that child’s conduct during the visitation period.”
Based on this constitutional right, the court concluded that, to warrant the issuance of a domestic restraining order based on alleged child abuse, there must be (1) a finding that “the parent’s discipline is [not] reasonably related to the purpose of safeguarding or promoting the welfare of the minor,” (2) taking into account “factors such as [a] the nature of the misbehavior, [b] the child’s age and size, and [c] the nature and propriety of the force used.”
The court left it for a lower court to apply this standard to the facts of the case. Here, though, are the facts as alleged by the child (a 15-year-old girl), which led to the issuance of a restraining order against the father:
Minor alleged three incidents of abuse. The first allegedly occurred on August 12, 2005. The day before, August 11, 2005, Minor was scheduled to have visitation with Petitioner after school. Minor called Petitioner and told him that she did not need a ride from school because Mother was going to pick her up. This turned out to be a fabrication. Instead, Minor, another teenage girl, and two teenage boys drove to a store to pick up the “morning after pill” for the other girl. That evening, Petitioner called Mother in an attempt to locate Minor, but Mother had not heard from Minor. Petitioner eventually decided to drive to Mother’s house. When Petitioner reached Mother’s house at around 10:00 p.m., Minor had arrived and Petitioner took Minor back to his home.
The next day, August 12, 2005, Petitioner and Minor spoke. When Petitioner learned what Minor had done, he became very angry. Petitioner informed Minor that he felt she should have told the other girl’s parents that their daughter was sexually active and should have allowed them to deal with the situation. Minor testified that she felt she did not have to talk with Petitioner because she had already spoken to Mother about the situation. Minor related that both she and Petitioner were yelling. Petitioner claimed that Minor was “just ranting and raving,” and “screaming” at her younger sister. Minor testified that, at some point, Petitioner hit her. Minor claimed that Petitioner struck her “a couple of times” and that Petitioner was attempting to slap her on the face but that she blocked his blows. Petitioner claimed that he only tried to hit Minor on the shoulder because Minor had tried to leave and Petitioner wanted her to stay and talk to him.
Mother was told that Minor and Petitioner were having an argument and called the police. When the police arrived, Minor told them that she was fine and the police left. Minor had no bruises as a result of the incident.
The second incident of alleged abuse took place on August 25, 2005. Minor claimed that she and Petitioner “got into a power struggle.” Minor had gone to Petitioner’s house that day early in the evening. Petitioner wanted to speak to Minor, but she did not want to talk because she “had to call other friends to get [her] homework and [was] busy.” According to Minor, Petitioner wanted to discuss “how [her] day went.” [Footnote: This incident, thus, was apparently not related to the August 12 “birth control” incident.] Minor acknowledged that Petitioner waited several hours to speak with her. At around 11:00 p.m., Petitioner again attempted to speak with Minor. Minor did not want to converse and said, “Dad, I have school tomorrow. I’d really like to go to bed.” Petitioner allegedly said, “No, we talk now.” The two then began to argue. Minor claimed that Petitioner then hit her. She stated, “[A]s I was covering my head, like, he hit me on my arms.” Petitioner also allegedly told Minor, “Don’t make me do that again.” Minor then called her Mother and told her that she was uncomfortable staying with Petitioner.
The last incident of abuse allegedly took place on September 16, 2005. According to Minor, Petitioner visited her school unannounced. The principal went to Minor’s classroom and said that he needed to speak to her. Once outside the classroom, the principal told Minor, “Your father is downstairs. We need to handle this now.” Minor claimed that Petitioner had been threatening to take her out of private school to discipline her. According to Minor, Petitioner began to say “how everything had been [her] fault,” “how [Petitioner's] financial problems were [her] fault,” and how Minor’s younger sister was “better than” Minor in various ways. Minor testified that she felt Petitioner was “bringing [her] down.”
Petitioner claimed that he was simply attempting to discipline Minor. Petitioner stated that Minor was difficult at times, would lie to him, and refused to follow reasonable rules, such as not riding in a car with anyone under the age of twenty-one. He claimed, however, that he never attempted to hit [Minor's] face, that he only visited her at school twice to talk to her, and that he never blamed his financial problems on her.