H 3149 Session 112 (1997-1998)
H 3149 General Bill, By Allison and Seithel
A BILL TO AMEND TITLE 20, CHAPTER 4, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO PROTECTION FROM DOMESTIC ABUSE, BY ENACTING THE "PROTECTION FROM
POST-SEPARATION FAMILY VIOLENCE ACT"; BY ADDING ARTICLE 3 SO AS TO CREATE A
PRESUMPTION THAT NO PARENT WITH A HISTORY OF FAMILY VIOLENCE MAY BE AWARDED
CUSTODY OF A CHILD AND TO PROVIDE CIRCUMSTANCES THAT MAY OVERCOME THE
PRESUMPTION; TO PROVIDE FOR SUPERVISED VISITATION UNDER CERTAIN CONDITIONS; TO
REQUIRE SEPARATION, DIVORCE, CHILD CUSTODY, AND VISITATION ORDERS TO CONTAIN
AN INJUNCTION AGAINST THE PERPETRATOR OF FAMILY VIOLENCE; TO REQUIRE THE
PERPETRATOR OF FAMILY VIOLENCE TO PAY ALL COURT AND ATTORNEY FEES AND COSTS
INCURRED FOR MEDICAL AND PSYCHOLOGICAL CARE NECESSITATED BY THE FAMILY
VIOLENCE; AND TO DESIGNATE SECTIONS 20-4-10 THROUGH 20-4-130 AS TITLE 20,
CHAPTER 4, ARTICLE 1 NAMED "PROTECTION FROM DOMESTIC VIOLENCE".
01/08/97 House Prefiled
01/08/97 House Referred to Committee on Judiciary
01/14/97 House Introduced and read first time HJ-61
01/14/97 House Referred to Committee on Judiciary HJ-62
A BILL
TO AMEND TITLE 20, CHAPTER 4, CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO PROTECTION FROM
DOMESTIC ABUSE, BY ENACTING THE "PROTECTION
FROM POST-SEPARATION FAMILY VIOLENCE ACT"
BY ADDING ARTICLE 3 SO AS TO CREATE A PRESUMPTION
THAT NO PARENT WITH A HISTORY OF FAMILY VIOLENCE
MAY BE AWARDED CUSTODY OF A CHILD AND TO
PROVIDE CIRCUMSTANCES THAT MAY OVERCOME THE
PRESUMPTION; TO PROVIDE FOR SUPERVISED VISITATION
UNDER CERTAIN CONDITIONS; TO REQUIRE SEPARATION,
DIVORCE, CHILD CUSTODY, AND VISITATION ORDERS TO
CONTAIN AN INJUNCTION AGAINST THE PERPETRATOR OF
FAMILY VIOLENCE; TO REQUIRE THE PERPETRATOR OF
FAMILY VIOLENCE TO PAY ALL COURT AND ATTORNEY
FEES AND COSTS INCURRED FOR MEDICAL AND
PSYCHOLOGICAL CARE NECESSITATED BY THE FAMILY
VIOLENCE; AND TO DESIGNATE SECTIONS 20-4-10
THROUGH 20-4-130 AS TITLE 20, CHAPTER 4, ARTICLE 1
NAMED "PROTECTION FROM DOMESTIC
VIOLENCE".
Whereas, the General Assembly finds that the problems of family
violence do not necessarily cease when the victimized family is
legally separated or divorced. In fact, the violence often escalates,
and child custody and visitation become the new form for the
continuation of the abuse. Because current laws relative to child
custody and visitation are based on an assumption that even divorcing
parents are in relatively equal positions of power and that divorcing
parents act in the children's best interest, these laws often work
against the protection of the children and the abused spouse in
families with a history of family violence. Consequently, laws
designed to act in the children's best interest actually may effect a
contrary result due to the unique dynamics of family violence. Now,
therefore,
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Title 20, Chapter 4 of the 1976 Code is amended by
adding:
"Article 3
Protection from Post-Separation Family Violence
Section 20-4-310. This article may be cited as the `Protection from
Post-Separation Family Violence Act'.
Section 20-4-320. As used in this article:
(1) `Abused parent' means the parent who has not committed
family violence.
(2) `Family violence' includes, but is not limited to, physical or
sexual abuse and any offense against the person as defined in Title
16, Chapter 3 committed by one parent against the other parent or
against any of the children. `Family violence' does not include
reasonable acts of self-defense utilized by one parent to protect
himself or herself or a child in the family from the family violence of
the other parent.
(3) `Injunction' means a temporary restraining order or a
preliminary or a permanent court-ordered injunction which prohibits
the violent parent from in any way contacting the abused parent or
the children except for specific purposes set forth in the injunction,
which must be limited to communications expressly dealing with the
education, health, and welfare of the children or for any other
purpose expressly agreed to by the abused parent. An injunction
shall prohibit the violent parent, without the express consent of the
abused parent, from intentionally going within fifty yards of the
home, school, place of employment, or person of the abused parent
and the children, or within fifty feet of any of their automobiles,
except as may otherwise be necessary for court-ordered visitation or
except as otherwise necessitated by circumstances considering the
proximity of the parties' residences or places of employment.
(4) `Supervised visitation' means face-to-face contact between a
parent and a child which occurs in the immediate presence of a
supervising person approved by the court under conditions which
prevent physical abuse, threats, intimidation, abduction, or
humiliation of either the abused parent or the child. The supervising
person may not be a relative, friend, therapist, or associate of the
parent perpetrating family violence. With the consent of the abused
parent, the supervising person may be a family member or friend of
the abused parent. At the request of the abused parent, the court may
order that the supervising person must be a police officer or other
competent professional. The parent who perpetrated family violence
shall pay all costs incurred in the supervision of visitation. In no case
may supervised visitation be overnight or in the home of the violent
parent.
(5) `Treatment program' means a course of evaluation and
psychotherapy designed specifically for perpetrators of family
violence and conducted by licensed mental health professionals.
(6) `Court' means the Family Court having jurisdiction over the
parents or the child.
Section 20-4-330. (A) A presumption is created that no parent
who has a history of perpetrating family violence may be awarded
sole or joint custody of children. The presumption only may be
overcome by a preponderance of the evidence that the perpetrating
parent successfully has completed a treatment program, is not
abusing alcohol or illegally using drugs, and that the best interest of
the child or children requires that parent's participation as a custodial
parent because of the other parent's absence, mental illness, or
substance abuse, or other circumstances which affect the best interest
of the child or children. The fact that the abused parent suffers from
the effects of the abuse are not grounds for denying that parent
custody.
(B) If the court finds that both parents have a history of
perpetrating family violence, custody must be awarded solely to the
parent who is less likely to continue to perpetrate family violence,
and the court shall order that parent to complete a treatment program.
If necessary to protect the welfare of the child, custody may be
awarded to a suitable third person if the person would not allow
access to a violent parent except as ordered by the court.
(C) If the court finds that a parent has a history of family violence,
the court only shall allow supervised child visitation with that parent,
conditioned upon that parent's participation in and completion of a
treatment program. Unsupervised visitation only may be allowed if
shown by a preponderance of the evidence that the violent parent
successfully has completed a treatment program, is not abusing
alcohol or illegally using drugs, poses no danger to the child, and that
visitation is in the child's best interest.
(D) If a court finds that a parent has sexually abused his or her
child or children, the court shall prohibit all visitation and contact
between the abusive parent and the children and only may order
supervised visitation if the court finds that the abusive parent has
successfully completed a treatment program designed for sexual
abusers and that supervised visitation is in the children's best interest.
Testimony by a licensed mental health professional with training,
experience, and expertise in treating sexual abuse victims, who is the
therapist for the abused child, must be given greater weight by the
court than other testimony on issues of visitation.
Section 20-4-340. (A) A court order in a separation, divorce, child
custody, or child visitation proceeding involving family violence
shall contain an injunction. A violation of the injunction must be
punished as contempt of court and results in a termination of all
court-ordered child visitation.
(B) If a parent is under indictment for a crime against the person
of a child or other parent, on the motion of the State or the other
parent, the court shall prohibit all contact between the indicted parent
and the other spouse and all children of the family. Supervised
visitation may be reinstated after a hearing initiated by a motion of
the indicted parent if the court finds it to be in the best interest of the
child.
Section 20-4-350. A mental health professional appointed by the
court to conduct a custody evaluation in a case where family violence
is an issue shall have current and demonstrable training and
experience working with perpetrators and victims of family violence.
Section 20-4-360. In a case involving family violence, all court
costs, attorney fees, evaluation fees, and expert witness fees incurred
in furtherance of this article must be paid by the perpetrator of the
family violence including all costs necessitated by the family
violence for medical care and psychological care for the abused
spouse or for any of the children.
Section 20-4-370. Relief obtained under this article is in addition
to any other civil and criminal remedies.
Section 20-4-380. No public funds allocated to a program which
provides services to victims of domestic violence may be used to
provide services to the perpetrator of domestic violence.
Section 20-7-390. Notwithstanding any other provision of law, in
a separation, divorce, child custody, visitation, child support,
alimony, or community property proceeding, no spouse or parent
who satisfies the court that he or she or any of the children has been
the victim of family violence perpetrated by the other spouse or
parent may be court ordered to participate in mediation."
SECTION 2. Sections 20-4-10 through 20-4-130 of the 1976 Code
are designated as Title 20, Chapter 4, Article 1 and named
"Protection from Domestic Violence".
SECTION 3. This act takes effect upon approval by the Governor.
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