Current Status Bill Number:
3149Type of Legislation: General Bill GBIntroducing Body: HouseIntroduced Date: 19970114Primary Sponsor: AllisonAll Sponsors: Allison and SeithelDrafted Document Number: gjk\23186ac.97Residing Body: HouseCurrent Committee: Judiciary Committee 25 HJSubject: Protection from Post-Separation Family Violence Act, domestic relations, crimes, minors
Body Date Action Description Com Leg Involved ______ ________ _______________________________________ _______ ____________ House 19970114 Introduced, read first time, 25 HJ referred to Committee House 19970108 Prefiled, referred to Committee 25 HJView additional legislative information at the LPITS web site.
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:
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.