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COMMITTEE AMENDMENT ADOPTED AND AMENDED
May 25, 2006
H. 4735
S. Printed 5/25/06--S. [SEC 5/26/06 3:58 PM]
Read the first time April 11, 2006.
TO AMEND SECTION 44-23-410, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DETERMINING THE FITNESS OF A PERSON CHARGED WITH A CRIME TO STAND TRIAL, SO AS TO INCREASE FROM FIFTEEN DAYS TO SIXTY DAYS THE TIME WITHIN WHICH THE MENTAL HEALTH EVALUATION OF THE PERSON MUST BE COMPLETED AND TO AUTHORIZE THE COURT ON GOOD CAUSE SHOWN TO GRANT AN EXTENSION OF UP TO THIRTY DAYS; TO AMEND SECTION 44-23-420, RELATING TO THE FITNESS TO STAND TRIAL REPORT OF A MENTAL HEALTH EVALUATION EXAMINER, SO AS TO INCREASE FROM FIVE TO TEN DAYS THE TIME WITHIN WHICH THE EXAMINER MUST SUBMIT HIS REPORT; AND TO AMEND SECTION 44-23-430, RELATING TO COMPETENCY HEARINGS AND DISPOSITION OF CASES IN SUCH HEARINGS, SO AS TO DECREASE FROM SIXTY DAYS TO FOURTEEN DAYS THE TIME WITHIN WHICH THE SOLICITOR MUST INITIATE JUDICIAL COMMITMENT PROCEEDINGS FOR A PERSON FOUND TO BE UNFIT TO STAND TRIAL AND IN ADDITION TO HOSPITALIZING THE PERSON, TO AUTHORIZE THE COURT IN SUCH A PROCEEDING TO CONTINUE THE PERSON IN DETENTION OR ON BOND.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 44-23-410 of the 1976 Code is amended to read:
"Section 44-23-410. (A) Whenever a judge of the Circuit Court or Family Court has reason to believe that a person on trial before him, charged with the commission of a criminal offense or civil contempt, is not fit to stand trial because the person lacks the capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity, the judge shall:
(1) order examination of the person by two examiners designated by the Department of Mental Health if the person is suspected of having a mental illness or designated by the Department of Disabilities and Special Needs if the person is suspected of being mentally retarded or having a related disability or by both sets of examiners if the person is suspected of having both mental illness and mental retardation or a related disability;. the The examination must be made within fifteen thirty days after the receipt of the court's order and may be conducted in any suitable place unless otherwise designated by the court; or
(2) order the person committed for examination and observation to an appropriate facility of the Department of Mental Health or the Department of Disabilities and Special Needs for a period not to exceed fifteen days. If at the end of fifteen days the examiners have been unable to determine whether the person is fit to stand trial, the director of the facility shall request in writing an additional period for observation not to exceed fifteen days. If the person or his counsel requests, the person may be examined additionally by a designated examiner of his choice. The report of the examination is admissible as evidence in subsequent hearings pursuant to Section 44-23-430. However, the court may prescribe the time and conditions under which the independent examination is conducted. If the examiners designated by the Department of Mental Health find indications of mental retardation or a related disability but not mental illness, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person is 'not mentally ill' and recommend that the person should be evaluated for competency to stand trial by the Department of Disabilities and Special Needs. If the examiners designated by the Department of Disabilities and Special Needs find indications of mental illness but not mental retardation or a related disability, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person does 'not have mental retardation or a related disability' and recommend that the person should be evaluated for competency to stand trial by the Department of Mental Health. If either the Department of Mental Health or the Department of Disabilities and Special Needs finds a preliminary indication of a dual diagnosis of mental illness and mental retardation or a related disability, this preliminary finding must be reported to the court with the recommendation that one examiner from the Department of Mental Health and one examiner from the Department of Disabilities and Special Needs be designated to further evaluate the person and render a final report on his mental capacity.
(B) Before the expiration of the examination period or the examination and observation period, the Department of Mental Health or the Department of Disabilities and Special Needs, as appropriate, may apply to a judge designated by the Chief Justice of the South Carolina Supreme Court for an extension of time up to fifteen days to complete the examination or the examination and observation.
(C) If the person or the person's counsel requests, the court may authorize the person to be examined additionally by a designated examiner of the person's choice. However, the court may prescribe the time and conditions under which the independent examination is conducted.
(D) If the examiners designated by the Department of Mental Health find indications of mental retardation or a related disability but not mental illness, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person is 'not mentally ill' and recommend that the person should be evaluated for competency to stand trial by the Department of Disabilities and Special Needs. If the examiners designated by the Department of Disabilities and Special Needs find indications of mental illness but not mental retardation or a related disability, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person does 'not have mental retardation or a related disability' and recommend that the person should be evaluated for competency to stand trial by the Department of Mental Health. If either the Department of Mental Health or the Department of Disabilities and Special Needs finds a preliminary indication of a dual diagnosis of mental illness and mental retardation or a related disability, this preliminary finding must be reported to the court with the recommendation that one examiner from the Department of Mental Health and one examiner from the Department of Disabilities and Special Needs be designated to further evaluate the person and render a final report on the person's mental capacity."
SECTION 2. Section 44-23-420 of the 1976 Code is amended to read:
"Section 44-23-420. (A) Within five ten days of examination under Section 44-23-410(1) 44-23-410(A)(1) or at the conclusion of the observation period under Section 44-23-410(2) 44-23-410(A)(2), the designated examiners shall make a written report to the court which shall include:
(1) A a diagnosis of the person's mental condition,; and
(2) Clinical clinical findings bearing on the issues of whether or not the person is capable of understanding the proceedings against him and assisting in his own defense, and if there is a substantial probability that he will attain that capacity in the foreseeable future.
(B) The report of the designated examiners shall not contain any findings nor shall the examiners testify on the question of insanity should it be raised as a defense unless further examination on the question of insanity is ordered by the court.
(C) The report is admissible as evidence in subsequent hearings pursuant to Section 44-23-430."
SECTION 3. Section 44-23-430 of the 1976 Code is amended to read:
"Section 44-23-430. Upon receiving the report of the designated examiners the court shall set a date for and notify the person and his counsel of a hearing on the issue of his fitness to stand trial. If, in the judgment of the designated examiners or the superintendent of the facility if the person has been detained, the person is in need of hospitalization, the court with criminal jurisdiction over the person may authorize his detention in a suitable facility until the hearing. The person shall be entitled to be present at the hearings and to be represented by counsel. If upon completion of the hearing and consideration of the evidence the court finds that:
(1) The person is fit to stand trial, it shall order the criminal proceedings resumed; or
(2) The person is unfit to stand trial for the reasons set forth in Section 44-23-410 and is unlikely to become fit to stand trial in the foreseeable future, the solicitor responsible for the criminal prosecution shall initiate judicial admission proceedings pursuant to Sections 44-17-510 through 44-17-610 or Section 44-20-450 within sixty fourteen days, excluding Saturdays, Sundays, and holidays, during which time the court shall may order him the person hospitalized, may order the person to continue in detention if detained or, if on bond, may permit the person to remain on bond; or
(3) The person is unfit to stand trial but likely to become fit in the foreseeable future, the court shall order him hospitalized for up to an additional sixty days. If the person is found to be unfit at the conclusion of the additional period of treatment the solicitor responsible for the criminal prosecution shall initiate judicial admission proceedings pursuant to Sections 44-17-510 through 44-17-610 or Article 1 of Chapter 21 of this title Section 40-20-450 within fourteen days, excluding Saturdays, Sundays, and holidays, during which time the person shall remain hospitalized.
Subject to the provisions of Section 44-23-460, patients persons against whom criminal charges are pending shall have all the rights and privileges of other involuntarily hospitalized patients persons.
Persons against whom criminal charges are pending but who are not ordered hospitalized involuntarily committed following judicial admission proceedings shall be released."
SECTION 4. A. This section may be cited as the "Family Court Reform Act of 2006".
B. Section 15-36-10(A) of the 1976 Code, as last amended by Act 27 of 2005, is amended to read:
"Section 15-36-10. (A)(1) A pleading filed in a civil, family, or administrative action on behalf of a party who is represented by an attorney must be signed by at least one attorney of record who is an active member of the South Carolina Bar or who is admitted to practice in the courts of this State and must include the address and telephone number of the attorney signing the document.
(2) A document filed in a civil, family, or administrative action by a party who is not represented by an attorney must be signed by the party and must include the address and telephone number of the party.
(3) The signature of an attorney or a pro se litigant constitutes a certificate to the court that:
(a) the person has read the document;
(b) a reasonable attorney in the same circumstances would believe that under the facts his claim or defense may be warranted under the existing law or, if his claim or defense is not warranted under the existing law, a good faith argument exists for the extension, modification, or reversal of existing law;
(c) a reasonable attorney in the same circumstances would believe that his procurement, initiation, continuation, or defense of a civil cause is not intended merely to harass or injure the other party; and
(d) a reasonable attorney in the same circumstances would believe his claim or defense is not frivolous, interposed for delay, or brought for any purpose other than securing proper discovery, joinder of parties, or adjudication of the claim or defense upon which the proceedings are based.
(4) An attorney or pro se litigant participating in a civil, family, or administrative action or defense may be sanctioned for:
(a) filing a frivolous pleading, motion, or document if:
( i) the person has not read the frivolous pleading, motion, or document;
(ii) a reasonable attorney in the same circumstances would believe that under the facts, his claim or defense was clearly not warranted under existing law and that a good faith or reasonable argument did not exist for the extension, modification, or reversal of existing law;
(iii) a reasonable attorney presented with the same circumstances would believe that the procurement, initiation, continuation, or defense of a civil cause was intended merely to harass or injure the other party; or
(iv) a reasonable attorney presented with the same circumstances would believe the pleading, motion, or document is frivolous, interposed for merely delay, or merely brought for any purpose other than securing proper discovery, joinder of parties, or adjudication of the claim or defense upon which the proceedings are based;
(b) making frivolous arguments a reasonable attorney would believe were not reasonably supported by the facts; or
(c) making frivolous arguments that a reasonable attorney would believe were not warranted under the existing law or if there is no good faith argument that exists for the extension, modification, or reversal of existing law."
C. Section 15-36-10(I) of the 1976 Code is amended to read:
"(I) This act shall not alter the South Carolina Rules of Civil Procedure, or the South Carolina Appellate Court Rules, or the South Carolina Family Court Rules."
D. Section 20-3-130 of the 1976 Code is amended to read:
"Section 20-3-130. (A) In proceedings for divorce from the bonds of matrimony, and in actions for separate maintenance and support, the court may grant alimony or separate maintenance and support in such amounts and for such term as the court considers appropriate as from the circumstances of the parties and the nature of case may be just, pendente lite, and permanently. No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement, or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties. However, if the adultery does not occur until after one year from the date of the filing of an action for divorce or separate maintenance and support, the court may award alimony or separate maintenance and support if it finds that the adultery did not materially affect the economic circumstances of the parties or did not materially contribute to the breakup of the marriage.
(B) Alimony and separate maintenance and support awards may be granted pendente lite and permanently in such amounts and for periods of time subject to conditions as the court considers just including, but not limited to:
(1) periodic alimony to be paid but terminating on the remarriage or continued cohabitation of the supported spouse or upon the death of either spouse (except as secured in subsection (D)) and terminable and modifiable based upon changed circumstances occurring in the future. The purpose of this form of support may include, but is not limited to, circumstances where the court finds it appropriate to order the payment of alimony on an ongoing basis where it is desirable to make a current determination and requirement for the ongoing support of a spouse to be reviewed and revised as circumstances may dictate in the future.;
(2) lump-sum alimony in a finite total sum to be paid in one installment, or periodically over a period of time, terminating only upon the death of the supported spouse, but not terminable or modifiable based upon remarriage or changed circumstances in the future. The purpose of this form of support may include, but not be limited to, circumstances where the court finds alimony appropriate but determines that such an award be of a finite and nonmodifiable nature.;
(3) rehabilitative alimony in a finite sum to be paid in one installment or periodically, terminable upon the remarriage or continued cohabitation of the supported spouse, the death of either spouse (except as secured in subsection (D)) or the occurrence of a specific event to occur in the future, or modifiable based upon unforeseen events frustrating the good faith efforts of the supported spouse to become self-supporting or the ability of the supporting spouse to pay the rehabilitative alimony. The purpose of this form of support may include, but is not limited to, circumstances where the court finds it appropriate to provide for the rehabilitation of the supported spouse, but to provide modifiable ending dates coinciding with events considered appropriate by the court such as the completion of job training or education and the like, and to require rehabilitative efforts by the supported spouse.;
(4) reimbursement alimony to be paid in a finite sum, to be paid in one installment or periodically, terminable on the remarriage or continued cohabitation of the supported spouse, or upon the death of either spouse (except as secured in subsection (D)) but not terminable or modifiable based upon changed circumstances in the future. The purpose of this form of support may include, but is not limited to, circumstances where the court finds it necessary and desirable to reimburse the supported spouse from the future earnings of the payor spouse based upon circumstances or events that occurred during the marriage.;
(5) separate maintenance and support to be paid periodically, but terminating upon the continued cohabitation of the supported spouse, upon the divorce of the parties, or upon the death of either spouse (except as secured in subsection (D)) and terminable and modifiable based upon changed circumstances in the future. The purpose of this form of support may include, but is not limited to, circumstances where a divorce is not sought, but it is necessary to provide for support of the supported spouse by way of separate maintenance and support when the parties are living separate and apart.; and
(6) such other form of spousal support, under terms and conditions as the court may consider just, as appropriate under the circumstances without limitation to grant more than one form of support.
For purposes of this subsection and unless otherwise agreed to in writing by the parties, 'continued cohabitation' means the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement.
(C) In making an award of alimony or separate maintenance and support, the court must consider and give weight in such proportion as it finds appropriate to all of the following factors:
(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;
(2) the physical and emotional condition of each spouse;
(3) the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse's income potential;
(4) the employment history and earning potential of each spouse;
(5) the standard of living established during the marriage;
(6) the current and reasonably anticipated earnings of both spouses;
(7) the current and reasonably anticipated expenses and needs of both spouses;
(8) the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;
(9) custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;
(10) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of: (a) the formal signing of a written property or marital settlement agreement, or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;
(11) the tax consequences to each party as a result of the particular form of support awarded;
(12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and
(13) such other factors the court considers relevant.
(D) In making an award of alimony or separate maintenance and support, the court may make provision for security for the payment of the support including, but not limited to, requiring the posting of money, property, and bonds and may require a spouse, with due consideration of the cost of premiums, insurance plans carried by the parties during marriage, insurability of the payor spouse, the probable economic condition of the supported spouse upon the death of the payor spouse, and any other factors the court may deem relevant, to carry and maintain life insurance so as to assure support of a spouse beyond the death of the payor spouse. In making a determination to require security for support, the court shall not require proof that special circumstances or compelling reasons exist.
(E) In making an award of alimony or separate maintenance and support, the court may order the direct payment to the supported spouse, or may require that the payments be made through the Family Court and allocate responsibility for the service fee in connection with the award must order the payments be made through the clerk of court and allocate responsibility for the service fee in connection with the award to the payor, unless the payor spouse demonstrates to the satisfaction of the court that he will not default on his court ordered support obligation, or provides for security for the payment of the support in accordance with subsection (D) of this section. If the payor spouse is ever ten days or more late in paying his obligation, then, upon the filing of an affidavit with the family court by the supported spouse, all future payments by the payor spouse, and a service fee, must be made through the clerk of court. The court may require the payment of debts, obligations, and other matters on behalf of the supported spouse.
(F) The court may elect and determine the intended tax effect of the alimony and separate maintenance and support as provided by the Internal Revenue Code and any corresponding state tax provisions. The family court may allocate the right to claim dependency exemptions pursuant to the Internal Revenue Code and under corresponding state tax provisions and to require the execution and delivery of all necessary documents and tax filings in connection with the exemption.
(G) The family court may review and approve all agreements which bear on the issue of alimony or separate maintenance and support, whether brought before the court in actions for divorce from the bonds of matrimony, separate maintenance and support actions, or in actions to approve agreement where the parties are living separate and apart. The failure to seek a divorce, separate maintenance, or a legal separation does not deprive the court of its authority and jurisdiction to approve and enforce the agreements. The parties may agree in writing if properly approved by the court to make the payment of alimony as set forth in items (1) through (6) of subsection (B) nonmodifiable and not subject to subsequent modification by the court.
(H) The court, from time to time after considering the financial resources and marital fault of both parties, may order one party to pay a reasonable amount to the other for attorney fees, expert fees, investigation fees, costs, and suit money incurred in maintaining an action for divorce from the bonds of matrimony, as well as in actions for separate maintenance and support, including sums for services rendered and costs incurred before the commencement of the proceeding and after entry of judgment, pendente lite and permanently.
(I) When considering the factors provided in subsection (C) while making an award of alimony or separate maintenance and support, the court must give additional weight to both the award and the amount of the award of alimony or separate maintenance and support to the spouse seeking alimony or support when the court finds:
(a) that the spouse seeking alimony or support has not engaged in adultery; and
(b) that the other spouse has engaged in adultery prior to the earliest of either the formal signing of a written property or marital settlement agreement, or the entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.
The degree of additional weight given by the court to the award or the amount of the award of alimony or separate maintenance and support must be in the court's discretion."
E. Title 20 of the 1976 Code is amended by adding:
Section 20-6-10. This act shall be cited as the 'South Carolina Family Court Hearing Officer Act'.
Section 20-6-20. Family court hearing officers, herein referred to as hearing officer, shall be appointed by and serve on a voluntary basis at the pleasure of the Chief Justice of the South Carolina Supreme Court. Hearing officers shall be accountable to the Chief Justice and are subject to the Code of Judicial Conduct while acting in the capacity of hearing officers. Hearing officers shall be afforded protection pursuant to the South Carolina Tort Claims Act, located in Chapter 78 of Title 15, while acting in the capacity of hearing officers.
Section 20-6-30. Any person appointed to serve as a hearing officer must be a member of the South Carolina Bar in good standing with a minimum of ten years' experience in family court matters. Retired judges, not including probate judges, magistrates, municipal court judges, recorders, or any other summary court judges, may be appointed as hearing officers without having a minimum of ten years of experience in family court matters. Hearing officers must annually receive a minimum of six hours of continuing legal education on family court issues and shall be subject to additional standards as the South Carolina Supreme Court deems appropriate.
Section 20-6-40. (A) Hearing officers may be assigned all uncontested domestic relations matters by the Chief Administrative Judge for the circuit in which the hearing officer serves.
(B) Hearing officers may be assigned to hear Uniform Interstate Family Support Act matters and make recommendations of findings of fact and conclusions of law to a family court judge for consideration of an order by the family court judge as deemed just, equitable, and proper.
(C) Hearing officers may be assigned motion hearings for temporary relief in domestic relations matters, with consent of the parties, and make recommendations of findings of fact and conclusions of law with proposed relief to the family court judge for an order by the family court judge as deemed just, equitable, and proper.
(D) In addition to the cases listed in subsections (A), (B), and (C), the Chief Justice must issue directives concerning the other types of cases that may be assigned only to hearing officers who are retired judges. For purposes of this subsection, the term 'retired judge' does not include probate judges, magistrates, municipal court judges, recorders, or any other summary court judges. Pursuant to the Chief Justice's directives and statutory authority, the Chief Administrative Judge of the circuit in which the hearing officer serves may refer specific cases by order to the retired judge hearing officer.
The types of cases that may be assigned include, but are not limited to:
(1) motions hearings for temporary relief in domestic relations actions, with consent of the parties;
(2) hearings in the following Department of Social Services (DSS) cases: child abuse and neglect cases, including probable cause, merits hearings pursuant to Sections 20-7-736 and 20-7-738, and review hearings, permanency planning for children in foster care, termination of parental rights, and adoption, and motions or other applications to the court in these cases;
(3) hearings in DSS Adult Protective Services cases, including probable cause, merits, and motions;
(4) determinations of indigency; and
(5) rule to show cause hearings, including any private and agency child support actions when there are no other substantive matters at issue.
(C) The clerk of court shall maintain a family court hearing officer docket. The clerk of court must assign a date and time for each proceeding to be heard by a hearing officer. The clerk of court also must maintain a record of each proceeding in the same manner as prescribed for the family court. The party requesting a hearing must provide notice to all parties in the same manner as prescribed for the family court.
Section 20-6-50. A hearing officer shall have the same authority as a family court judge in those cases assigned to him or her, subject to any limitations imposed by statute and the directives of the Chief Justice. A hearing officer's powers include, but are not limited to:
(1) administer oaths;
(2) preserve and enforce order during hearings;
(3) hold persons in contempt of court and sanction them accordingly, provided the hearing officer is a retired judge;
(4) examine witnesses;
(5) issue bench warrants for failure to appear, provided the hearing officer is a retired judge;
(6) issue orders and rulings on motions;
(7) act as the finder of fact and law;
(8) take minors and vulnerable adults into emergency protective custody, provided the hearing officer is a retired judge;
(9) issue temporary orders relating to equitable division of marital property, child support, custody, visitation, attorney's fees, discovery, and restraining orders as they relate to domestic relations actions, provided the hearing officer is a retired judge;
(10) require additional hearings for review of cases as necessary; and
(11) appoint attorneys and guardians ad litem as appropriate and permitted by law, provided the hearing officer is a retired judge.
Section 20-6-60. No matter directly appealable to the Supreme Court shall be subject to referral to any hearing officer.
Section 20-6-70. Proceedings shall be held in the county of appropriate venue unless the parties consent to conducting the proceedings in another county. The South Carolina Judicial Department shall maintain a list of qualified hearing officers for each county.
Section 20-6-80. The orders and rulings issued by a retired judge hearing officer shall be considered final and where allowed, shall be appealed directly to the Court of Appeals, as provided by the South Carolina Appellate Court Rules. All orders and rulings issued by a hearing officer who is not a retired judge must be reviewed by a family court judge in which the retired judge hearing officer serves. No further hearing is required for the family court judge's review; however, further hearing may be ordered if the family court judge determines it is necessary. Orders and rulings affirmed by a family court judge shall be appealed directly to the Court of Appeals, as provided by the South Carolina Appellate Court Rules.
Section 20-6-90. Hearing officers shall not be barred from the private practice of law in family court. However, they shall not preside over any matter in which they have participated as a lawyer.
Section 20-6-100. All applicable Rules of Family Court and Rules of Civil Procedure shall apply in all proceedings presided over by a hearing officer.
Section 20-6-110. Hearing officers shall receive credit for court appointments as determined by the Supreme Court."
F. Chapter 7, Title 20 of the 1976 Code is amended by adding:
"Section 20-7-93. (A) For purposes of this chapter, in making an award of child support, either temporary or permanent, the court must order the payments be made through the clerk of court and allocate responsibility for the service fee in connection with the award to the payor, unless the person demonstrates to the satisfaction of the court that he will not default on his court ordered support obligation, or provides for security for the payment of the support in accordance with subsection (B). If the person is ever ten days or more late in paying his obligation, then, upon the filing of an affidavit with the family court by the person receiving the support for the child, all future payments by the person, and a service fee, must be made through the clerk of court.
(B) In making an award of child support, the court may make provision for security for the payment of the support including, but not limited to, requiring the posting of money, property, and bonds."
G. Section 20-7-420(A) of the 1976 Code is amended by adding an appropriately numbered subsection at the end to read:
"( ) To sanction a party who files a frivolous claim or motion under Title 20, pursuant to the standards set forth in Section 15-36-10. Upon the second or subsequent determination by the court that the requesting party has filed a frivolous claim or motion under Title 20 involving the same litigants, the court must impose sanctions on the requesting party as permitted by state law and the South Carolina Rules of Court."
H. Section 20-7-570 of the 1976 Code is amended to read:
"Section 20-7-570. (A) If the family court determines pursuant to Section 20-7-695 that a person has made a report of suspected child abuse or neglect maliciously or in bad faith or if a person has been found guilty of making a false report pursuant to Section 20-7-567, the department may bring a civil action to recover the costs of the department's investigation and proceedings associated with the investigation, including attorney's fees. The department also is entitled to recover costs and attorney's fees incurred in the civil action authorized by this section. The decision of whether to bring a civil action pursuant to this section is in the sole discretion of the department.
(B) If the family court determines pursuant to Section 20-7-695 that a person has made a false report of suspected child abuse or neglect maliciously or in bad faith or if a person has been found guilty of making a false report pursuant to Section 20-7-567, a person who was subject of the false report has a civil cause of action against the person who made the false report and is entitled to recover from the person who made the false report such relief as may be appropriate, including:
(1) actual damages;
(2) punitive damages; and
(3) a reasonable attorney's fee and other litigation costs reasonably incurred.
(C) If a civil lawsuit is filed pursuant to subsections (A) or (B) and the court finds that this is a second or subsequent:
(1) report of suspected child abuse or neglect made maliciously or in bad faith pursuant to Section 20-7-695; or
(2) adjudication of guilt for making a false report pursuant to Section 20-7-567;
then the court must grant appropriate relief as permitted by state law and the South Carolina Rules of Court."
I. Subarticle 3, Article 7, Chapter 7, Title 20 of the 1976 Code is amended by adding:
"Section 20-7-572. (A) If the department determines that an allegation of child abuse or neglect was unfounded, the person who is the alleged perpetrator in the report of abuse or neglect may petition the court to release the identity of the person making the report. However, such a petition may only be heard if the person who made the report was not required to report pursuant to Section 20-7-510(A).
(B) If the petition can be heard in accordance with subsection (A) of this section, the court shall order the department to release the name of the person who made the report if the court finds that the report was made maliciously or in bad faith. The court may find malice or bad faith if it finds that:
(1) there was no basis in fact for the person making the report to believe that the child's physical or mental health or welfare was or may have been adversely affected by abuse or neglect;
(2) the impetus for making the report was other than a belief that the child's physical or mental health or welfare was or may have been adversely affected by abuse or neglect; or
(3) the impetus for making the report was to gain an advantage in a judicial proceeding."
J. Title 20 of the 1976 Code is amended by adding:
Section 20-8-10. This act shall be cited as the 'South Carolina Family Law Mediation Act'.
Section 20-8-20. The General Assembly finds and declares as follows:
(A) that it is the public policy of this State that family law, divorce, and domestic relations cases including custody, visitation, child support, alimony, equitable apportionment, and fee issues shall be adjudicated quickly, fairly, and inexpensively;
(B) that mediation is one of several methods of accomplishing this goal and that mediation should be encouraged in all domestic relations and family law matters; and
(C) that the family courts of South Carolina should encourage and expedite such proceedings as should the South Carolina Bar, the medical community, counselors and mental health professionals, and financial experts.
Section 20-8-30. For purposes of this chapter, the following definitions apply:
(A) 'Mediation' is an informal process in which a third-party mediator facilitates settlement discussions between parties. Any settlement is voluntary. In the absence of settlement, the parties lose none of their rights to trial in the family court.
(B) A 'mediator' is a neutral person who acts to encourage and facilitate the resolution of pending family court actions and/or ongoing family disputes. The mediator has no authority to make decisions or to impose settlement.
Section 20-8-40. (A) All issues in domestic relations actions are subject to court-ordered mediation except where exempted. The following cases must be automatically exempted from mediation:
(1) contempt actions;
(2) child abuse and neglect proceedings;
(3) DSS Adult Protective Services cases;
(4) any case where there has been a finding by a court of competent jurisdiction within one year of the date of filing the action of spousal abuse or child abuse or neglect by one of the parties;
(5) juvenile proceedings;
(6) uncontested issues;
(7) actions where there is an agreement between the parties for voluntary mediation, subject to court approval; or
(8) the entry of a divorce or separate maintenance decree.
Certification that an action is exempt from court-ordered mediation shall be on a form approved by the Supreme Court.
(B) A party or the court may move to dispense with or defer mediation due to exceptional circumstances. Upon a showing of exceptional circumstances, and after a hearing, the Chief Judge for Administrative Purpose of the Family Court may grant the motion without a hearing and notify the parties or their attorneys of the ruling. Exceptional circumstances may relate to such factors as, but are not limited to:
(1) geographic considerations;
(2) incapacity of a party;
(3) incompetence of a party;
(4) cases where there has been a finding by a court of competent jurisdiction more than one year from the date of filing the action of spousal abuse or child abuse or neglect by one of the parties; or
(5) substance abuse by one of the parties.
(C) The court must order that the mediation conference or conferences shall be conducted no sooner than ninety days after the filing of the action, unless, in the court's discretion, the mediation conference should commence at an earlier date, and concluded no later than one hundred eighty days after the filing of the action. A party may seek an extension of time to complete mediation, and the court, in its discretion, may extend the time to complete mediation in a written order.
(D) The South Carolina Supreme Court shall establish the minimum number of hours that parties must participate in mediation.
(E) No final hearing in any domestic relations action shall be scheduled or heard prior to the completion of mediation, unless the matter is exempt from mediation by operation of this chapter or by order of the Chief Judge for Administrative Purpose of the Family Court upon a showing of exceptional circumstances. A request for a final hearing must be accompanied by a copy of the written mediation report.
Section 20-8-50. All mediation must be conducted in accordance with the procedures established in the South Carolina Family Court Alternative Dispute Resolution Rules in effect at the time for the State."
K. If any section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this chapter, and each and every section, subsection, item, subitem, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one of more other sections, subsections, items, subitems, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
L. This section takes effect January 1, 2007, and applies to cases filed on or after that date.
SECTION 5. This act takes effect upon approval by the Governor.
This web page was last updated on Tuesday, June 23, 2009 at 2:41 P.M.