In Hawaii, there are two types of Restraining or Protective Orders (commonly called Temporary Restraining Orders or TRO’s for short). Both types are issued by a judge and can prevent you or someone else from contacting specific people and/or going to certain places. Some TRO’s can last three years or more and can impact child custody arrangements and prevent the person restrained from possessing firearms for the duration of the order. Violation of the restraining order is a misdemeanor (up to one year in jail and $2,000.00 fine) and can include mandatory jail for a first offense, and in certain situations mandatory classes. Due to the high consequences and restrictive nature, a hearing is typically set within 15 days of the petition being filed to allow individuals to present their cases before a judge.
Family Court Temporary Restraining Order/Protective Order: These TRO’s apply between family members or household members and are filed “ex parte,” which means the judge reviews the petition and can temporarily grant or deny without the other person even being aware of the proceedings. The judge’s initial decision is temporary and a hearing must generally occur within 15 days whereby the parties can present evidence and call witnesses.
In the petition for restraining order, the person requesting the TRO must persuade the judge that a past act or acts of domestic abuse may have occurred, threats of abuse make it probable that acts of abuse may be imminent, or extreme psychological abuse or malicious property damage is imminent.
- “Domestic Abuse” means physical harm, bodily injury, assault, or the threat of imminent physical harm, assault, extreme psychological abuse or malicious property damage between family or household members.
- “Extreme psychological abuse” means an intentional or knowing course of conduct directed at an individual that seriously alarms or disturbs consistently or continually bothers the individual, and that serves no legitimate purpose; provided that such course of conduct would cause a reasonable person to suffer extreme emotional distress.
- “Malicious property damage” means an intentional or knowing damage to the property of another, without his consent, with an intent to thereby cause emotional distress.
At the hearing, the person being restrained (called the respondent) is required to “show cause” to the judge, why the protective order should not be continued. If the order is granted, it lasts generally 180 days and can apply to both parties, or only one party. Further, the judge can make other orders that he/she deems are necessary to prevent domestic abuse or a recurrence of abuse, including orders establishing temporary visitation with regard to minor children of the parties and orders to either or both parties to participate in domestic violence intervention, or other orders the judge deems necessary including the temporary mental health hospitalization of the individual under HRS 334-59(a)(2).
Because of the serious nature of these TRO’s, and since they can be continued almost indefinitely, it is imperative you speak with a qualified attorney, such as myself, whether you are trying to get one issued or defending one because someone else has filed against you. A qualified lawyer will review all the facts and circumstances relating to your case and can help present your situation in the best possible light before the judge.
District Court Temporary Restraining Order: This process essentially follows the same procedure as Family Court in that the hearing is generally set within 15 days of the petition being filed. At the hearing, the petitioner must convince and prove to the judge by clear and convincing evidence that an act of harassment has occurred and is likely to occur again. “Harassment” means:
- Physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault; or
- An intentional or knowing course of conduct directed at an individual that seriously alarms or disturbs consistently or continually bothers the individual and serves no legitimate purpose; provided that such course of conduct would cause a reasonable person to suffer emotional distress.
If the judge grants the TRO, it can remain in effect up to three years (occasionally longer) and prevent the restrained party from contacting, directly or indirectly, other people, going to specific places, or doing specific things. Because of the serious nature of the TRO, it is imperative you contact a qualified attorney, such as myself, who can help you through this process and achieve the best possible outcome.
Call to schedule an appointment before it is too late.