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Sponsors: Senator Mescher
Document Path: l:\s-jud\bills\mescher\jud0048.wcm.doc
Introduced in the Senate on January 24, 2007
Currently residing in the Senate Committee on Judiciary
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 1/24/2007 Senate Introduced and read first time SJ-8 1/24/2007 Senate Referred to Committee on Judiciary SJ-8 1/26/2007 Senate Referred to Subcommittee: Ritchie (ch), Rankin, Lourie, Scott
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VERSIONS OF THIS BILL
TO AMEND CHAPTER 3, TITLE 20, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 20-3-165, RELATING TO CONTACT BETWEEN A CHILD AND EACH PARENT, SO AS TO REQUIRE PARENTS TO PROVIDE EACH OTHER WITH ADDRESS, TELEPHONE NUMBER, ELECTRONIC MAIL ADDRESS, AND OTHER ELECTRONIC COMMUNICATION INFORMATION WITHIN TWENTY-FOUR HOURS, TO DEFINE ELECTRONIC COMMUNICATION, AND TO ENCOURAGE REASONABLE COMMUNICATIONS BETWEEN A CHILD AND HIS OR HER PARENTS IN THE FORM OF TELEPHONE, ELECTRONIC MAIL, AND OTHER ELECTRONIC COMMUNICATION IF REASONABLY AVAILABLE, AND TO PROVIDE THAT THE COURT SHALL DECIDE WHETHER EQUIPMENT FOR ELECTRONIC COMMUNICATION IS REASONABLY AVAILABLE IF THE PARTIES CANNOT AGREE; TO AMEND SECTION 20-7-30 SO AS TO DEFINE VISITATION AND ELECTRONIC COMMUNICATION; TO AMEND SUBARTICLE 1, ARTICLE 3, CHAPTER 7, TITLE 20, BY ADDING SECTION 20-7-108, RELATING TO PARENT CHILD VISITATION, SO AS TO PERMIT A COURT TO GRANT REASONABLE TIME FOR ELECTRONIC COMMUNICATION AS DETERMINED BY THE COURT AT REASONABLE HOURS BETWEEN A PARENT AND A CHILD WHEN THE CHILD IS NOT IN THE PARENT'S PHYSICAL CUSTODY, TO PROVIDE THAT ELECTRONIC COMMUNICATION SUPPLEMENTS AND DOES NOT REPLACE ACTUAL CUSTODY OR VISITATION WITH A CHILD, TO PROVIDE THAT THE AMOUNT OF ELECTRONIC COMMUNICATION SHALL NOT BE A FACTOR IN THE CALCULATION OF CHILD SUPPORT, AND MAY NOT BE USED AS A FACTOR TO JUSTIFY A RELOCATION BY THE CUSTODIAL PARENT OUT OF THE IMMEDIATE AREA, AND TO PROVIDE THAT SUPERVISED VISITATION SHALL INCLUDE ELECTRONIC COMMUNICATIONS BETWEEN A PARENT AND CHILD; TO AMEND SECTION 20-7-420, RELATING TO THE JURISDICTION OF THE FAMILY COURT, SO AS TO INCLUDE REASONABLE ELECTRONIC COMMUNICATIONS IN VISITATION WITH GRANDPARENTS OF A MINOR CHILD AND SIBLING VISITATION; AND TO AMEND SECTION 20-7-786, RELATING TO DEFINITIONS, SO AS TO INCLUDE REASONABLE ELECTRONIC COMMUNICATION IN THE DEFINITION OF CUSTODIAL DETERMINATION.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 3, Title 20 of the 1976 Code is amended by adding:
"Section 20-3-165. (A) Absent a showing by a preponderance of evidence of real harm or substantiated potential harm to the child:
(1) it is in the child's best interests to have frequent, meaningful, and continuing access to each parent;
(2) each parent is entitled to and responsible for frequent, meaningful, and continuing access with his child consistent with the child's best interests; and
(3) it is in the best interests of the child to have both parents actively involved in parenting the child.
(B) Each parent must:
(1) provide the other with his current address and telephone number, electronic mail address, and any other access information related to instant messaging, video conferencing, and other wired or wireless technologies over the Internet or other communication media to supplement in-person visits between a noncustodial parent and a child or between a child and the custodial parent when the child is staying with the noncustodial parent. Electronic communication is designed to supplement, rather than replace, in-person parent-time;
(2) permit and encourage, during reasonable hours and for reasonable duration, reasonable communications with the child in the form of telephone, electronic mail, and other electronic communication if the equipment is reasonably available. If the parties cannot agree on whether the equipment is reasonably available, the court shall decide whether the equipment for electronic communication is reasonably available, taking into consideration:
(a) the best interests of the child;
(b) each parent's ability to handle any additional expenses for virtual parent-time; and
(c) any other factors the court considers material."
SECTION 2. Section 20-7-30 of the 1976 Code is amended to read:
"Section 20-7-30. When used in this chapter and unless otherwise defined or the specific context indicates otherwise:
(1) 'Child' means a person under the age of eighteen.
(2) 'Court' means the family court.
(3) 'Guardian' means a person who legally has the care and management of a child.
(4) 'Judge' means the judge of the family court.
(5) 'Parent' means biological parent, adoptive parents, step-parent, or person with legal custody.
(6) 'Status offense' means any offense which would not be a misdemeanor or felony if committed by an adult, such as, but not limited to, incorrigibility (beyond the control of parents), truancy, running away, playing or loitering in a billiard room, playing a pinball machine or gaining admission to a theater by false identification.
(7) 'Child caring facility' means a campus with one or more staffed residences and with a total population of twenty or more children who are in care apart from their parents, relatives, or guardians on a continuing full-time basis for protection and guidance.
(8) 'Foster home' means a household of one or more persons who are licensed or approved to provide full-time care for one to five children living apart from their parents or guardians.
(9) 'Residential group care home' means a staffed residence with a population fewer than twenty children who are in care apart from their parents, relatives, or guardians on a full-time basis.
(10) 'Visitation' means in-person time spent between a child and his or her parent including any electronic communication.
(11) 'Electronic communication' means time during which a parent or grandparent and his or her child communicate by using communication tools such as the telephone, electronic mail, instant messaging, video conferencing, or other wired or wireless technologies via the Internet, or another medium of communication."
SECTION 3. Subarticle 1, Article 3, Chapter 7, Title 20 of the 1976 Code is amended by adding:
"Section 20-7-108. (A) The court may grant a reasonable amount of electronic communication at reasonable hours to either or both parents when the child is not in the parent's physical custody if the equipment is reasonably available. The court shall decide the reasonable availability of electronic communication equipment.
(B) Electronic communication with the child may be used only to supplement a parent's periods of visitation with the child. Electronic communication may not be used as a replacement or as a substitute for custody or a parent's period of visitation with the child.
(C) The amount of time electronic communication is used shall not be a factor in the calculation of child support.
(D) The court may not use the availability of electronic communication as a factor to justify or in support of a relocation by the custodial parent out of the immediate area or State.
(E) Any supervised visitation shall include any electronic communication between a child and the supervised parent."
SECTION 4. Section 20-7-420(A) of the 1976 Code is amended to read:
"(A) The family court has exclusive jurisdiction:
(1) To hear and determine matters which come within the provisions of the Uniform Reciprocal Enforcement of Support Act.
(2) To hear and determine actions:
for divorce a vinculo matrimonii, separate support and maintenance, legal separation, and in other marital litigation between the parties, and for settlement of all legal and equitable rights of the parties in the actions in and to the real and personal property of the marriage and attorney's fees, if requested by either party in the pleadings.
(3) To hear and determine actions for and related to the adoption of children and adults.
(4) To hear and determine actions for termination of parental rights, whether such action is in connection with an action for adoption or apart therefrom.
(6) To hear and determine actions for the annulment of marriage.
(8) To hear and determine actions for changing names, whether in connection with a divorce or a separate support and maintenance action or apart therefrom.
(9) To hear and determine actions for the correction of birth records.
(10) To consent to the enlistment of a minor in the military service or the employment of a minor, if a minor has no one standing in loco parentis to do so.
(11) To hear and determine proceedings within the county to compel the support of a spouse or child, whether legitimate or illegitimate.
(12) For the protection, guardianship and disposition of neglected or dependent minors in proceedings properly brought before it for the support of a spouse or child.
(13) In all cases or proceedings within the county against persons charged with failure to obey an order of the court made pursuant to authority conferred by law.
(14) To order support of a spouse or child, or both, irrespective of whether they are likely to become a public charge.
(15) To include in the requirements of an order for support the providing of necessary shelter, food, clothing, care, medical attention, expenses of confinement, both before and after the birth, the expense of educating his or her child and other proper and reasonable expenses.
(16) To require of persons legally chargeable with the support of a spouse or child, who are possessed of sufficient means or who are able to earn such means, the payment weekly, or at other fixed periods, of a fair and reasonable sum for such support, or as a contribution toward such support, according to the means of the persons so chargeable.
(17) To make all orders for support run until further order of the court, except that orders for child support run until the child is eighteen years of age or until the child is married or becomes self-supporting, as determined by the court, whichever occurs first or to provide for child support past the age of eighteen years if the child is in high school and is making satisfactory progress toward completion of high school, not to exceed the nineteenth birthday unless exceptional circumstances are found to exist or unless there is a preexisting agreement or order to provide for child support past the age of eighteen years; and in the discretion of the court, to provide for child support past age eighteen where there are physical or mental disabilities of the child or other exceptional circumstances that warrant the continuation of child support beyond age eighteen for as long as the physical or mental disabilities or exceptional circumstances continue.
(18) To make an order for support of a husband or wife and children by his or her spouse, even though he or she may have left the home, in cases where the spouse's conduct or condition or his or her cruel or inhuman behavior made it unsafe or improper for the deserting spouse to continue to live with him or her. Such orders may require either spouse or any other party to the proceeding:
A. (a) To stay away from the home or from the other or either spouse or children;
B. (b) To permit either spouse to visit the children at stated periods; .
C. (c) To abstain from offensive conduct against the other spouse or either of them, or against the children;
D. (d) To give proper attention to the care of the home;
E. (e) To refrain from acts of commission or omission that tend to make the home not a proper place for the other, or either spouse, or the children.
(19) In furtherance of the complete disposition of cases in the jurisdiction of the court, to bring in and make parties to any proceedings pending in the court any person or persons charged with or alleged to be interfering with the marital relationship between a husband and wife, in violation of the law or of the rights of either party to the marriage, or whose presence to the proceedings may be found necessary to a complete determination of the issues therein, or the relief to which the parties thereto, or any of them, may be entitled; and shall have the power to enjoin and restrain such interference and to punish for contempt of court violations of such injunctions or restraining orders.
(20) To award the custody of the children, during the term of any order of protection, to either spouse, or to any other proper person or institution.
to To determine the manner in which sums ordered paid for support shall be paid and applied, either to a person through the court, through the clerk of court, or through a centralized wage withholding system if required by federal statute or regulation.
(22) To require a person ordered to support another to give security by a written undertaking that he will pay the sums ordered by the court for such support and, upon the failure of any person to give such security by a written undertaking when required by order of the court, to punish such person for contempt and, when appropriate, to discharge such undertaking.
(23) In lieu of requiring an undertaking, to suspend sentence and place on probation a person who has failed to support another as required by law, and to determine the conditions of such probation and require them to be observed; to revoke such suspension of sentence and probation, where circumstances warrant it; and to discharge a respondent from probation.
(24) To release on probation prior to the expiration of the full term a person committed to jail for failure to obey an order of the court, where the court is satisfied that the best interest of the family and the community will be served thereby.
(25) To modify or vacate any order issued by the court.
(26) To order either before, during or after a hearing a mental, physical and psychiatric examination as circumstances warrant.
(27) To exclude the public from the courtroom in a proper case.
(28) To send processes or any other mandates in any matter in which it has jurisdiction into any county of the State for service or execution in like manner and with the same force and effect as similar processes or mandates of the circuit courts, as provided by law.
(29) To compel the attendance of witnesses.
(30) To make any order necessary to carry out and enforce the provisions of this chapter, and to hear and determine any questions of support, custody, separation, or any other matter over which the court has jurisdiction, without the intervention of a jury; however, the court may not issue an order which prohibits a custodial parent from moving his residence to a location within the State unless the court finds a compelling reason or unless the parties have agreed to such a prohibition.
(31) To require spouse to furnish support or to be liable for nonsupport, as provided above, if, at the time of the filing of the petition for supports:
(A) (a) He is residing or domiciled in the county or when such area is the matrimonial domicile of the parties; or
(B) (b) He is not residing or domiciled in the area referred to in subsection (A) (a), but is found therein at such time, provided the petitioner is so residing or domiciled at such time; or
(C) (c) He is neither residing or domiciled nor found in such area but, prior to such time and while so residing or domiciled, he shall have failed to furnish such support, or shall have abandoned his spouse or child and thereafter shall have failed to furnish such support, provided that the petitioner is so residing or domiciled at that time.
(32) The petitioner need not continue to reside or be domiciled in such area where the cause of action arose, as provided in subitems
(A) (a) and (B) (b) of item (31) of this section, if the conduct of the respondent has been such as to make it unsafe or improper for her to so reside or be domiciled, and the petitioner may bring action in the court of the jurisdiction wherein she is residing or has become domiciled.
(33) To order periods of visitation for the grandparents of a minor child, to include reasonable electronic communication, as defined in Section 20-7-30, where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats regardless of the existence of a court order or agreement, and upon a written finding that the visitation rights would be in the best interests of the child and would not interfere with the parent/child relationship. In determining whether to order visitation for the grandparents, the court shall consider the nature of the relationship between the child and his grandparents prior to the filing of the petition or complaint.
(34) To order custody with all rights of guardianship as described in Section 21-21-50.
(35) To hear and determine actions for protection from domestic abuse.
(36) To issue orders compelling public officials and officers to perform official acts under Chapter 7, Title 20, the Children's Code, Chapter 4, Title 20, Protection from Domestic Abuse Act, and Chapter 29, Title 43, Protective Services for Developmentally Disabled and Senile Persons.
(37) To appoint guardians ad litem in actions pertaining to custody or visitation pursuant to Section 20-7-1545.
(38) To hear and determine an action where either party in his or her complaint, answer, counterclaim, or motion for pendente lite relief prays for the allowance of suit money pendente lite and permanently. In this action the court shall allow a reasonable sum for the claim if it appears well-founded. Suit money, including attorney's fees, may be assessed for or against a party to an action brought in or subject to the jurisdiction of the family court. An award of temporary attorney's fees or suit costs must not be stayed by an appeal of the award.
(39) To require the parties to engage in court-mandated mediation pursuant to Family Court Mediation Rules or to issue consent orders authorizing parties to engage in any form of alternate dispute resolution which does not violate the rules of the court or the laws of South Carolina; provided however, the parties in consensual mediation must designate any arbiter or mediator by unanimous consent subject to the approval of the court.
(40) To require the parent of a child brought before the court for adjudication of a delinquency matter and agencies providing services to the family to cooperate and participate in a plan adopted by the court to meet the needs and best interests of the child and to hold a parent or agency in contempt for failing to cooperate and participate in the plan adopted by the court. In imposing its contempt powers the Family Court must take into consideration mitigating circumstances including the parent's or legal custodian's participation in the treatment plan, the level of services being offered by the lead and participating agencies, and the level of cooperation by the lead and participating agencies as the court may deem appropriate.
(41) To order a person required to pay support under a court order being enforced under Title IV-D of the Social Security Act who is unemployed or underemployed and who is the parent of a child receiving AFDC benefits to participate in an employment training program or public service employment pursuant to regulations promulgated by the department. The Division of Child Support Enforcement of the State Department of Social Services also has jurisdiction under this item in cases under Title IV-D of the Social Security Act brought pursuant to Article 32, Chapter 7, Title 20 of the 1976 Code.
(42) To order joint or divided custody where the court finds it is in the best interests of the child.
(43) To enforce an administrative subpoena or subpoena duces tecum issued by the Department of Social Services pursuant to Section 20-7-9575 and to enforce fines assessed by the department pursuant to Sections 20-7-9575, 43-5-595(C), and 43-5-598(G).
(44) To order sibling visitation, to include reasonable electronic communication as defined in Section 20-7-30, where the court finds it is in the best interest of the children.
(45) To hear and determine actions concerning control of the person of a minor, including guardianship of the minor.
(46) To order custody of a minor child to the de facto custodian under the circumstances specified in Section 20-7-1540."
SECTION 5. Section 20-7-786 of the 1976 Code is amended to read:
"Section 20-7-786. As used in this subarticle, unless the context clearly indicates otherwise:
(1) 'contestant' means a person, including a parent, who claims a right to custody or visitation rights with respect to a child;
(2) 'custody determination' means a court decision and court orders and instructions providing for the custody of a child, including visitation rights and reasonable electronic communication, as defined in Section 20-7-30; it does not include a decision relating to child support or any other monetary obligation of any person;
(3) 'custody proceeding' includes proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings;
(4) 'decree' or 'custody decree' means a custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree;
(5) 'home state' means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period;
(6) 'initial decree' means the first custody decree concerning a particular child;
(7) 'modification decree' means a custody decree which modifies or replaces a prior decree, whether made by the court which rendered the prior decree or by another court;
(8) 'physical custody' means actual possession and control of a child;
(9) 'person acting as parent' means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody;
(10) 'state' means any state, territory or possession of the United States, the Commonwealth of Puerto Rico and the District of Columbia;
(11) 'court' or 'court of this State' means the statewide system of family courts established' pursuant to Sections 14-21-410 et seq.;
(12) 'clerk of the court' or 'clerk of the family court' means the clerk of a respective family court or the person in charge of administration of a family court if not designated as clerk of that court."
SECTION 6. This act takes effect upon approval by the Governor and applies to all cases filed on or after that date.
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