S*0083(Rat #0190, Act #0120 of 1997)  General Bill, By M.T. Rose
 A BILL TO AMEND ARTICLE 11, CHAPTER 7, TITLE 20, CODE OF LAWS OF SOUTH
 CAROLINA, 1976, RELATING TO DISPOSITION OF CASES BEFORE THE FAMILY COURT, BY
 ADDING SECTION 20-7-1530, SO AS TO REQUIRE THE COURT TO GIVE WEIGHT TO
 EVIDENCE OF DOMESTIC VIOLENCE IN DETERMINING THE CUSTODY OF MINOR CHILDREN; TO
 AMEND ARTICLE 11, CHAPTER 7, TITLE 20, RELATING TO DISPOSITION OF CASES BEFORE
 THE FAMILY COURT BY ADDING SUBARTICLE 2, SO AS TO PROVIDE FOR SPECIAL
 VISITATION PROVISIONS WHICH A COURT MAY ORDER WHEN AWARDING VISITATION IN
 CASES INVOLVING DOMESTIC AND FAMILY VIOLENCE; AND TO REQUIRE THE PERPETRATOR
 OF THE DOMESTIC VIOLENCE TO PAY FOR TREATMENT OF A CHILD PHYSICALLY OR
 PSYCHOLOGICALLY INJURED BY THE VIOLENCE; TO AMEND SECTION 16-25-70, AS
 AMENDED, RELATING TO WARRANTLESS ARRESTS AND SEARCHES IN CRIMINAL DOMESTIC
 VIOLENCE CASES, SO AS TO REVISE INFORMATION AN OFFICER MUST CONSIDER IN
 DETERMINING WHETHER A PERSON IS THE PRIMARY AGGRESSOR, TO REQUIRE A STATEMENT
 FROM THE OFFICER WHERE THE OFFICER IS NOT ABLE TO MAKE THAT DETERMINATION, AND
 TO AUTHORIZE THE COURT TO DISMISS CHARGES AGAINST A PARTY WHEN THE OTHER PARTY
 IS FOUND TO BE THE PRIMARY AGGRESSOR; AND TO AMEND SECTION 24-21-645, AS
 AMENDED, RELATING TO PAROLE ORDERS ISSUED BY THE BOARD OF PROBATION, PAROLE
 AND PARDON SERVICES, SO AS TO REQUIRE A PRISONER DENIED PAROLE, WHO A TRIAL
 PRESENTED EVIDENCE OF BEING THE VICTIM OF SPOUSAL DOMESTIC VIOLENCE, REVIEWED
 EVERY TWELVE MONTHS RATHER THAN EVERY TWO YEARS.-AMENDED TITLE

   01/14/97  Senate Introduced and read first time SJ-112
   01/14/97  Senate Referred to Committee on Judiciary SJ-112
   04/09/97  Senate Committee report: Favorable with amendment
                     Judiciary SJ-8
   04/10/97  Senate Amended SJ-28
   04/10/97  Senate Read second time SJ-28
   04/15/97  Senate Amended SJ-21
   04/15/97  Senate Read third time and sent to House SJ-21
   04/16/97  House  Introduced and read first time HJ-16
   04/16/97  House  Referred to Committee on Judiciary HJ-17
   05/28/97  House  Committee report: Favorable with amendment
                     Judiciary HJ-56
   06/03/97  House  Amended HJ-106
   06/03/97  House  Read second time HJ-109
   06/04/97  House  Debate adjourned HJ-62
   06/05/97  House  Debate adjourned HJ-16
   06/05/97  House  Read third time and returned to Senate with
                     amendments HJ-108
   06/05/97  Senate Concurred in House amendment and enrolled SJ-149
   06/09/97         Ratified R 190
   06/15/97         Became law without Governor's signature
   06/15/97         Effective date 06/15/97
   06/26/97         Copies available
   06/26/97         Act No. 120

AN ACT TO AMEND ARTICLE 11, CHAPTER 7, TITLE 20, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DISPOSITION OF CASES BEFORE THE FAMILY COURT, BY ADDING SECTION 20-7-1530, SO AS TO REQUIRE THE COURT TO GIVE WEIGHT TO EVIDENCE OF DOMESTIC VIOLENCE IN DETERMINING THE CUSTODY OF MINOR CHILDREN; TO AMEND ARTICLE 11, CHAPTER 7, TITLE 20, RELATING TO DISPOSITION OF CASES BEFORE THE FAMILY COURT BY ADDING SUBARTICLE 2, SO AS TO PROVIDE FOR SPECIAL VISITATION PROVISIONS WHICH A COURT MAY ORDER WHEN AWARDING VISITATION IN CASES INVOLVING DOMESTIC AND FAMILY VIOLENCE; AND TO REQUIRE THE PERPETRATOR OF THE DOMESTIC VIOLENCE TO PAY FOR TREATMENT OF A CHILD PHYSICALLY OR PSYCHOLOGICALLY INJURED BY THE VIOLENCE; TO AMEND SECTION 16-25-70, AS AMENDED, RELATING TO WARRANTLESS ARRESTS AND SEARCHES IN CRIMINAL DOMESTIC VIOLENCE CASES, SO AS TO REVISE INFORMATION AN OFFICER MUST CONSIDER IN DETERMINING WHETHER A PERSON IS THE PRIMARY AGGRESSOR, TO REQUIRE A STATEMENT FROM THE OFFICER WHERE THE OFFICER IS NOT ABLE TO MAKE THAT DETERMINATION, AND TO AUTHORIZE THE COURT TO DISMISS CHARGES AGAINST A PARTY WHEN THE OTHER PARTY IS FOUND TO BE THE PRIMARY AGGRESSOR; AND TO AMEND SECTION 24-21-645, AS AMENDED, RELATING TO PAROLE ORDERS ISSUED BY THE BOARD OF PROBATION, PAROLE AND PARDON SERVICES, SO AS TO REQUIRE A PRISONER DENIED PAROLE, WHO AT TRIAL PRESENTED EVIDENCE OF BEING THE VICTIM OF SPOUSAL DOMESTIC VIOLENCE, REVIEWED EVERY TWELVE MONTHS RATHER THAN EVERY TWO YEARS.

Be it enacted by the General Assembly of the State of South Carolina:

Consideration of domestic violence in awarding custody

SECTION 1. Subarticle 1, Article 11, Chapter 7, Title 20 of the 1976 Code is amended by adding:

"Section 20-7-1530. (A) In making a decision regarding custody of a minor child, in addition to other existing factors specified by law, the court must give weight to evidence of domestic violence as defined in Section 16-25-20 or Section 16-25-65 including, but not limited to:

(1) physical or sexual abuse; and

(2) if appropriate, evidence of which party was the primary aggressor, as defined in Section 16-25-70.

(B) The absence or relocation from the home by a person, against whom an act of domestic violence has been perpetrated, if that person is not the primary aggressor, must not be considered by the court to be sufficient cause, absent other factors, to deny custody of the minor child to that person."

Visitation in domestic violence cases

SECTION 2. Article 11, Chapter 7, Title 20 of the 1976 Code is amended by adding:

Section 20-7-1557. (A) A court may award visitation to a person who has been found by a general sessions, magistrates, municipal, or family court to have committed domestic violence, as defined in Section 16-25-20 or Section 16-25-65, or in cases in which complaints were made against both parties, to the person found by a general sessions, magistrates, municipal, or family court to be the primary aggressor under Section 16-25-70, only if the court finds that adequate provision for the safety of the child and the victim of domestic violence can be made.

(B) In a visitation order, a court may:

(1) order an exchange of a child to occur in a protected setting;

(2) order visitation supervised by another person or agency;

(3) order a person who has been found by a general sessions, magistrates, municipal, or family court to have committed domestic violence, or in cases in which complaints were made against both parties, the person found by the court to have been the primary aggressor, to attend and complete, to the satisfaction of the court, a program of intervention for offenders or other designated counseling as a condition of the visitation;

(4) order a person who has been found by a general sessions, magistrates, municipal, or family court to have committed domestic violence, or in cases in which complaints were made against both parties, the person found by the court to have been the primary aggressor, to abstain from possession or consumption of alcohol or controlled substances during the visitation and for twenty-four hours preceding the visitation;

(5) order a person who has been found by a general sessions, magistrates, municipal, or family court to have committed domestic violence, or in cases in which complaints were made against both parties, the person found by a general sessions, magistrates, municipal, or family court to be the primary aggressor, to pay a fee to defray the costs of supervised visitation;

(6) prohibit overnight visitation;

(7) require a bond from a person who has been found by a general sessions, magistrates, municipal, or family court to have committed domestic violence, or in cases in which complaints were made against both parties, from the person found by a general sessions, magistrates, municipal, or family court to be the primary aggressor, for the return and safety of the child if that person has made a threat to retain the child unlawfully;

(8) impose any other condition that is considered necessary to provide for the safety of the child, the victim of domestic violence, and any other household member.

(C) If a court allows a household member to supervise visitation, the court must establish conditions to be followed during the visitation.

(D) A judge may, upon his own motion or upon the motion of any party, prohibit or limit the visitation when necessary to ensure the safety of the child or the parent who is a victim of domestic violence.

(E) If visitation is not allowed or is allowed in a restricted manner to provide for the safety of a child or parent who is a victim of domestic violence, the court may order the address of the child and the victim to be kept confidential.

(F) The court must order a person who has been found by a general sessions, magistrates, municipal, or family court to have committed domestic violence, or in cases in which complaints were made against both parties, the person found by a general sessions, magistrates, municipal, or family court to be the primary aggressor, to pay the actual cost of any medical or psychological treatment for a child who is physically or psychologically injured as a result of one or more acts of domestic violence."

Determination of primary aggressor

SECTION 3. Section 16-25-70 of the 1976 Code, as last amended by Act 83 of 1995, is further amended to read:

"Section 16-25-70. (A) A law enforcement officer may arrest, with or without a warrant, a person at the person's place of residence or elsewhere if the officer has probable cause to believe that the person is committing or has freshly committed a misdemeanor or felony under the provisions of Section 16-25-20, 16-25-50, or 16-25-65 even if the act did not take place in the presence of the officer. The officer may, if necessary, verify the existence of an order of protection by telephone or radio communication with the appropriate police department.

(B) A law enforcement officer must arrest, with or without a warrant, a person at the person's place of residence or elsewhere if physical manifestations of injury to the alleged victim are present and the officer has probable cause to believe that the person is committing or has freshly committed a misdemeanor or felony under the provisions of Section 16-25-20, 16-25-50, or 16-25-65 even if the act did not take place in the presence of the officer. The officer may, if necessary, verify the existence of an order of protection by telephone or radio communication with the appropriate police department.

(C) In effecting a warrantless arrest under this section, a law enforcement officer may enter the residence of the person to be arrested in order to effect the arrest where the officer has probable cause to believe that the action is reasonably necessary to prevent physical harm or danger to a family or household member.

(D) If a law enforcement officer receives conflicting complaints of domestic or family violence from two or more household members involving an incident of domestic or family violence, the officer shall evaluate each complaint separately to determine who was the primary aggressor. If the officer determines that one person was the primary physical aggressor, the officer must not arrest the other person accused of having committed domestic or family violence. In determining whether a person is the primary aggressor, the officer shall consider:

(1) prior complaints of domestic or family violence;

(2) the relative severity of the injuries inflicted on each person taking into account injuries alleged which may not be easily visible at the time of the investigation;

(3) the likelihood of future injury to each person;

(4) whether one of the persons acted in self-defense;

(5) household member accounts regarding the history of domestic violence.

(E) A law enforcement officer must not threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage requests for intervention by law enforcement by a party.

(F) A law enforcement officer who arrests two or more persons for a crime involving domestic or family violence must include the grounds for arresting both parties in the written incident report and must include a statement in the report that the officer attempted to determine which party was the primary aggressor pursuant to this section and was unable to make a determination based upon the evidence available at the time of the arrest.

(G) When two or more household members are charged with a crime involving domestic or family violence arising from the same incident and the court finds that one party was the primary aggressor pursuant to this section, the court, if appropriate, may dismiss charges against the other party or parties.

(H) No evidence other than evidence of violations of this article found as a result of a warrantless search is admissible in a court of law.

(I) In addition to the protections granted to the law enforcement officer and law enforcement agency under the South Carolina Tort Claims Act, a law enforcement officer is not liable for an act, omission, or exercise of discretion under this section unless the act, omission, or exercise of discretion constitutes gross negligence, recklessness, wilfulness, or wantonness."

Parole reviews for victims of domestic violence

SECTION 4. Section 24-21-645 of the 1976 Code, as last amended by Act 181 of 1993, is further amended to read:

"Section 24-21-645. The board may issue an order authorizing the parole which must be signed either by a majority of its members or by all three members meeting as a parole panel on the case ninety days prior to the effective date of the parole; however, at least two-thirds of the members of the board must authorize and sign orders authorizing parole for persons convicted of a violent crime as defined in Section 16-1-60. A provisional parole order shall include the terms and conditions, if any, to be met by the prisoner during the provisional period and terms and conditions, if any, to be met upon parole. Upon satisfactory completion of the provisional period, the director or one lawfully acting for him must issue an order which, if accepted by the prisoner, shall provide for his release from custody. However, upon a negative determination of parole, prisoners in confinement for a violent crime as defined in Section 16-1-60 must have their cases reviewed every two years for the purpose of a determination of parole, except that prisoners who are eligible for parole pursuant to Section 16-25-90, and who are subsequently denied parole must have their cases reviewed every twelve months for the purpose of a determination of parole. This section applies retroactively to a prisoner who has had a parole hearing pursuant to Section 16-25-90 prior to the effective date of this act."

Time effective

SECTION 5. This act takes effect upon approval by the Governor.

Became law without the signature of the Governor -- 6/15/97.