South Carolina child custody restraining orders I really hate

Posted Saturday, August 26th, 2017 by Gregory Forman
Filed under Child Custody, Contempt/Enforcement of Orders, Jurisprudence, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

By the same process that causes attorneys’ boilerplate to grow over time–they borrow “good” ideas from other attorneys but never weed out redundant or obsolete clauses–the list of restraining orders that family court judges impose on parents continues to grow.

Since many local family court judges treat violations of these restraining orders as criminal contempt–and send parents to jail as a sanction–this becomes even more problematic. The fear of living under such well intentioned but poorly devised restraining orders is not the primary reason I remain married to my baby mama–it does, however, provide strong incentive. I’d be violating these orders routinely.

A recent custody case provides numerous examples of such ill conceived restraints:

Both parties shall refrain from exposing each minor child to any immoral, unlawful, or otherwise inappropriate conduct, circumstances, or places.

If the judge who issued this order knows what it intends, I applaud him. Shielding a child from “immoral” or “unlawful” “conduct,” likely limits that child to watching movies or television shows, or reading books, aimed at toddlers. The Bible, a favorite book of South Carolina Family Court judges, is filled with immoral and inappropriate conduct. That God is often smiting folks for such conduct, or Jesus preaching against such conduct, would not obviate the violation contained by this restraint.

Further, many families have members who engage in immoral or inappropriate conduct. Is that child to be shielded from his or her extended family? Unless one is willing to risk jail, I assume the answer is yes.

Finally, is is the court’s intention to hold parents in contempt for driving over the speed limit or doing California Stops with the children in their vehicle?  If this is the case, private investigation has tremendous growth potential within our state.

Neither party shall expose each minor child to violent conduct.

Again the Bible–filled with violent conduct. Practically any non G-rated movie contains some violent conduct. The Star Wars movies, favorites of the grade school crowd, feature numerous instances of mass genocide. I don’t believe family court judges intend to incarcerate parents for allowing their children to read the Bible–however they need to draft better restraining orders.

Neither party shall expose the minor children or allow the minor children to be exposed to sexually explicit conduct, language, television, videos, movies, book, or other material of any kind or allow the minor children access to such material through unsupervised use of computers, smart phones, or other technology that may become commonly used in the future.

You can now go to jail if your daughter listens to Beyonce.

All parties are retrained against allowing the child/children to see or be exposed to age inappropriate movies, computer access or websites, games or other such material or forms of entertainment and shall take all reasonable precautions against the same. In no case shall the children be exposed to any X-rated or pornographic material or R-rated movies.

There are currently 66 family court judges–including retired but active judges–in South Carolina. Any of those 66 could eventually be deciding what is “age inappropriate.” Given that South Carolina is a conservative state, I assume most of these judges decry the “nanny state.” Those same judges will be your child’s nanny.

Age inappropriate media can be a lovely bonding experience with one’s children. I know many young boys who relish playing violent video games with their fathers, often to their mother’s disapproval. Parents are entitled to have differing views on a child’s exposure to media.

My wife and younger daughter bond over cooking competition shows, fashion competition shows, and shows in which hugely entitled women yell at one another. I don’t think these shows are appropriate for any age. In return, my daughter and I bonded over movies entailing general mayhem, and specific zombie apocalypse. If a family court judge wouldn’t take his tween daughter to those movies, that’s his decision to make. But he shouldn’t make that decision for my daughter.

Another problem with this restraint is that it makes a parent responsible for any exposure by the child to such materials. Teens have been known to search out R-rated or pornographic materials on their own. The only way to comply with that restraint is to put blocks on a child’s internet access. Some parents may be willing to force this restriction. Most–for good reason–won’t. They shouldn’t risk jail for not doing so.

A restraint that “Neither party shall allow the minor children to watch or be exposed to NC-17 or X-rated movies or pornographic materials” should suffice to prevent harm. Outside of this restraint parents ought to be allowed to determine what media their children consume.

Both parties shall exercise such caution and care to keep each minor child in a safe environment.

Trampolines, swimming pools, and bicycles are now off limits. Accidental discharge of guns also kills hundreds of children every year. “South Carolina family court judge denies parents Second Amendment rights” is a headline I long to read. Car accidents kill numerous children every year. You can no longer raise your children in the suburbs. But the cities aren’t safe either. Move to the country and have them ride donkeys to school (but donkeys have been known to kick).

The only way to comply with this restraint is to wrap your children in bubble wrap. Please make sure they don’t choke on the plastic.

All parties are restrained against having any form of physical or verbal confrontation or allowing another to do so in front of the children.

I have no issue with the physical confrontation restraint. I have no issue with a restraint on verbal confrontations between the parties around the children (although I suspect few children from intact families never see their parents argue). But a restraint that prevents parents from getting into any verbal confrontations with others around their children is unworkable. Humans don’t always agree. One method of resolving disagreement is to argue–i.e., verbal confrontation. Compared to other methods of handling disagreement, it’s one of the better ones.

Perhaps in heaven everyone will get along. Here on earth, people have disagreements. I don’t think family court judges intend to put parents in jail if their children observe these disagreements. However they should draft better restraining orders.

Neither party shall expose the minor children to romantic companions, unrelated by blood or marriage, between the hours of 11:00 p.m. and 6:00 a.m.

I’ve previously blogged about this restraint’s overbreadth. While the family court’s continued belief that if children aren’t exposed to parental non-marital cohabitation they will somehow remain virgins until marriage is almost charmingly naive, this restraint still fails what I call the Jane Austin test. Miss Austin’s terribly upright aristocrats regularly stayed in the same home as someone to whom they were romantically attracted. In fact, that is how they conducted their courtships. If such courtship behavior is proper in Jane Austin’s world, it should pass muster in 21st century South Carolina.

I’ve had numerous recent cases in which clients could not bring romantic companions to family reunions even if numerous other family members would be present in the house, and even if the client did not share a bedroom with the romantic companion. Further because the restraint isn’t limited to activities within a bedroom, it restrains a parent from bringing the child and the romantic companion on late night (or early morning) activities.

Since South Carolina still loves this restraint, I try to draft it to make the limitation explicit to “within a residence.” To allow romantic companions at family events, I also like to add that, “This restraint does not prohibit either party from bringing a romantic companion to an event that is chaperoned by third-parties so long as that party and his or her romantic companion do not share a bedroom.”

Neither party shall expose the minor children to the use or possession of illegal drugs or abuse of alcohol or prescription drugs.

It might be possible to avoid exposing children to “the use or possession of illegal drugs,” but you won’t be taking those children to many rock concerts. As for not exposing children to the “abuse” of “prescription drugs”–let’s hope your children have no desire to see their cousin who occasionally takes someone else’s Ritalin or their aunt who may be addicted to opiates. It’s unclear whether you can even send that child to a South Carolina high school (or even a middle school).

But if your children are going to avoid being exposed to the “abuse of alcohol” you need to move to Saudi Arabia. Sporting events: someone in the stands is likely to be abusing alcohol and your child can’t be present. Concerts and performing arts: there’s a drunk in every crowd. Weddings: now off limits. And if you’re eating with your children at a nice restaurant and someone at a nearby table has a few too many: I assume you’re supposed to ask for the check and leave immediately.

I don’t take issue with a restraining order that prevents the child’s parents or caregivers from doing these things. But a restraint that prevents the child from be exposed to these things at all is unworkable in 2017 America.

Each party shall be required to give the right of first refusal to care for the minor children to the other before arranging a babysitter or other caretaker for the minor children for periods longer than one hour, except that this provision shall not restrain the children from spending time with their friends, away from a parent.

I’ve previously written about my dislike of the right of first refusal. Folks going through contested custody litigation need to establish distance. Granting a right of first refusal enables them to be in the other’s business and hinders the separation process. A court imposed right of first refusal is simply a well-intentioned method of prolonging and creating conflict.

Neither party shall use or allow the use of vulgar, profane, demeaning, or violent language in the presence of the minor children.

Well damn, I hope these parents never stub their toes or bang their shins. These same parents better keep their discussions of politics and other hot topics lofty–can’t be referring to anyone as an idiot with the children around.

Again, a restraint against using such language towards the children or the other parent might be useful. However, a blanket prohibition against such language is unworkable. Even a recent New York Times article makes The Case for Cursing as a method of dealing with pain and frustration.

If we are going to hold parents in contempt for certain behaviors around their children we need to make those restraints as clear as possible and as narrow as necessary. This becomes even more important if we are going to incarcerate parents for such violations.

The current status of such restraining orders in South Carolina’s family court–vague and overbroad–is bad and getting worse. What appears well intentioned is frankly insane.