Parents fighting restraining orders in Family Court can now raise the defense that they were disciplining their kids and not abusing them, the Hawaii Supreme Court has declared in clarifying an unsettled area of state law.

While the parental discipline defense has been recognized in criminal abuse and assault cases, as well as in child custody cases, Family Court judges had differing views on whether parents could invoke that defense in cases involving restraining orders that direct them to stay away from their kids.

The 5-0 ruling by the high court makes clear that defense can now be raised.

The court held in a decision Tuesday that parents have a right to discipline their children under the state Constitution’s due process clause.

The court also ruled that parents can raise the defense even if they don’t have legal custody of the children, but were supervising them at the time of the alleged abuse.

It will still be up to the Family Court judge to decide whether the defense is applicable or whether the order should be upheld.

The 37-page opinion is the latest in a series of Hawaii Supreme Court rulings pertaining to the controversial issue of how far a parent can go in disciplining a child before it becomes assault or abuse.

The high court’s ruling does not affect the process in which thousands of residents seek and obtain domestic abuse restraining orders, which are generally granted based on the applicants’ allegations.

But at hearings held within 15 days on whether the order is justified, parents can now raise the parental discipline defense against allegations that they abused the children.

THE STATE PARENTAL defense law essentially allows a parent to use force for the welfare of the child as long as it is not designed to inflict "substantial bodily injury" or "extreme pain or mental distress."

"I think it’s a good ruling," said Thomas Farrell, who last year was chairman of the Family Law section of the Hawaii State Bar Association. "There was a lack of clarity in the law, and it does seem to me that a parent has a right to use reasonable discipline on a child and shouldn’t be the subject of a restraining order for doing so."

He said that in his experience, Family Court judges have been "all over the place" in restraining order hearings with some recognizing the defense and others not.

Robert Thomas, lawyer for a father who contested a restraining order in the case that led to the ruling, said it represents "a good day for freedom, especially among Hawaii’s parents, children and families."

He said the court "strongly affirmed" the constitutional rights of parents "to keep the government out of their families and for parents, and not the state, to control the behavior of their children."

More than 5,000 requests for domestic abuse restraining orders are filed each year, but state Judiciary officials say the number of those requests involving allegations of parents abusing their kids isn’t immediately available.

Some lawyers estimate it’s only a fraction of the cases since the bulk involve allegations of one adult abusing another adult.

The high court’s ruling stems from a case involving a restraining order issued in 2005 against Christy Lethem.

The order was obtained by his ex-wife, Lily Hamilton, on behalf of their daughter, Amber Lethem. Hamilton’s request for the order said the father abused their daughter.

The order prohibited the father from threatening or contacting the daughter, who was 15 at the time, and directed him to stay at least 100 yards away from her for 90 days.

The father challenged the order at a hearing, but Family Court District Judge Darryl Choy ruled that the father did not have the right to discipline the daughter because he didn’t have custody of her.

Also, the parental discipline defense applied only to criminal cases, Choy said.

In upholding the order, Choy focused on an incident involving an argument between the father and daughter.

The daughter had testified she and her father were yelling at each other and her father struck her "a couple of times" and tried to slap her face, but she blocked the blows.

The father acknowledged he was angry, but said he only tried to hit her on the shoulder because she was trying to leave.

Choy found that the father struck the girl.

In the high court’s opinion, written by Associate Justice Simeon Acoba, the justices held that a parent’s right to discipline a child would have no meaning if it couldn’t be raised at the restraining order hearing.

"A parent would have the right to impose reasonable discipline in a criminal case, but could not raise the same justification in opposition to interference by the state with the parent-child relationship in a civil setting," Acoba wrote.

The court also held that a noncustodial parent retains a "residual parental right" that includes the discipline defense.

Otherwise, the court reasoned, it could lead to an absurd situation in which noncustodial parents alone with their children during a visitation period would not be able to use reasonable force to discipline them.

The high court set aside Choy’s ruling and sent the case back to Family Court.