§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)  [Repeal and reenactment on July 1,
2010.  L 2009, c 11, §19.]  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 subsection 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 subsection as
follows:



(1)  For a first conviction for 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; and



(2)  For the second and any subsequent conviction for
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) and (2), upon condition that
the defendant remain alcohol and drug-free, conviction-free, or complete
court-ordered assessments or intervention.  Nothing in this subsection shall be
construed as limiting the discretion of the judge to impose additional
sanctions authorized in sentencing for a misdemeanor.



If the court finds that the defendant has
knowledge of the location of any protected party's residence, place of
employment, or school, in addition to any other penalties provided in this
subsection, the court may, as a condition of probation, prohibit contact with
the protected party through the establishment of court-defined geographic
exclusion zones, including the areas in and around the protected party's
residence, place of employment, or school, and order that the defendant wear a
global positioning satellite tracking device designed to transmit and record
the defendant's location data.  If the defendant enters a court-defined
geographic exclusion zone, the defendant's location data shall be immediately
transmitted to the protected party and to the police through any appropriate
means, including the telephone, an electronic beeper, or a paging device.  The
global positioning satellite tracking device and its tracking shall be
administered by the court.  If a court finds that the defendant has entered a
geographic exclusion zone, the court shall revoke the probation and the
defendant shall be fined, imprisoned, or both, as provided in this subsection. 
Based on the defendant's ability to pay, the court may also order the defendant
to pay the monthly costs or portion thereof for monitoring by the global
positioning satellite tracking system.



(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, 6; am L 2009, c 159, §1]



 



Rules of Court



 



  Restraining orders, see HFCR rule 65.



 



Case Notes



 



  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.



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



  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.



  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.



  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.