South Carolina’s Protection from Domestic Abuse Act is intended to create streamlined procedures to protect spouses, domestic partners, and parents who have a child in common from domestic abuse by their spouse, romantic companion, or co-parent. While intended to address urgent issues of domestic violence on short notice with short hearings, domestic abuse proceedings can have permanent ramifications on issues of custody, divorce, and alimony.
South Carolina protection from domestic abuse statute defines abuse as (1) physical harm, bodily injury, assault, or the threat of physical harm; (2) sexual criminal offenses, as otherwise defined by statute, committed against a family or household member by a family or household member. One does not actually have to suffer physical harm obtain protection from domestic abuse law. Mere verbal threats, if credible and serious, can constitute domestic abuse.
A domestic abuse hearing is like a small trial. The court will take testimony and the witnesses will be subject to cross examination. One can subpoena witnesses and introduce exhibits. Unlike many trials in which the parties have weeks or months to prepare, a domestic violence defense hearing can take place the next day and rarely takes place more than 15 days after service of the petition.
If the court finds domestic abuse, it can order one party out of a common residence, can set child custody, child support and spouse support, and restrain the abusive party from various types of contact, or any contact, with the domestic abuse victim. These orders can remain in effect for up to one year. They cannot change title to property. Violation of domestic abuse orders is a criminal offense.
The court can only issue a mutual restraining order if both parties agree. If the court does not find domestic abuse it dismisses the case without an order finding no domestic abuse law violations.
The case of Moore v. Moore, 376 S.C. 467, 657 S.E.2d 743 (2008), establishes that when a domestic abuse action is heard on a non-emergency basis (which grants the defending party at least five days, rather than a mere 24 hours, notice) the resulting order is adjudicative. This means that the factual findings are binding on the parties and the court in subsequent proceedings. A finding of abuse from such a proceeding can affect the subsequent outcome on divorce, custody and alimony issues. Sometimes one really must appeal a domestic abuse order to preserve one’s rights in a custody or divorce case. Defeating a finding of domestic abuse means that one has established conclusively that the abuse did not happen during the incident alleged by the petitioner. This too is binding in subsequent proceedings and can alter negotiating leverage.
If one does not like the results from a domestic abuse order, one has the option of filing a divorce or separate maintenance action (if the parties are married) or a custody action (if they have children in common but are not married). A temporary order from such action can modify a domestic abuse order. However the family court will take the domestic violence defense and abuse order into consideration when it considers a motion for temporary relief.
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