(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 § 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:
Attorney's Note
Under the Hawaii Revised Statutes, punishments for crimes depend on the classification. In the case of this section:
| Class | Prison | Fine |
|---|
| misdemeanor | up to 1 year | $2,000 |
For details, see
Haw. Rev. Stat. § 706-663
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Terms Used In Hawaii Revised Statutes 586-4
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Bail: Security given for the release of a criminal defendant or witness from legal custody (usually in the form of money) to secure his/her appearance on the day and time appointed.
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Conviction: A judgement of guilt against a criminal defendant.
- Dating relationship: means a romantic, courtship, or engagement relationship, often but not necessarily characterized by actions of an intimate or sexual nature, but does not include a casual acquaintanceship or ordinary fraternization between persons in a business or social context. See Hawaii Revised Statutes 586-1
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Domestic abuse: means :
(1) Physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault, extreme psychological abuse, coercive control, or malicious property damage between family or household members; or
(2) Any act which would constitute an offense under section 709-906, or under part V or VI of chapter 707 committed against a minor family or household member by an adult family or household member. See Hawaii Revised Statutes 586-1
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- Temporary restraining order: Prohibits a person from an action that is likely to cause irreparable harm. This differs from an injunction in that it may be granted immediately, without notice to the opposing party, and without a hearing. It is intended to last only until a hearing can be held.
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 be ordered by the court to complete an assessment at any available domestic violence program and shall complete a domestic violence intervention or anger management course as determined by the domestic violence program. 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 no less than $150 nor more than $500;
(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 no less than $150 nor more than $600; 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 no 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.
(g) If the court denies a temporary restraining order, the court may order upon the oral request of the respondent or the person to be restrained that the petition record be withheld from public inspection; provided that the record shall remain accessible to law enforcement officers without a court order.
