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The lunacy of the restraint against “exposing the children to members of the opposite sex, unrelated by blood or marriage, overnight ”

A common restraint in South Carolina family court orders involving custody or visitation with minor children is a restraint against “exposing the children to members of the opposite sex, unrelated by blood or marriage, overnight.”  South Carolina family court culture does not approve of non marital sexual activity and these restraining orders are the court’s method of demonstrating this disapproval.  The idea is that children learn values from their parents and they learn these values both directly–their parents teach them values–and indirectly–parents, through their behavior, demonstrate their values.  The family court does not want children learning from their parents that non marital sexual activity is acceptable.

We can tell that it is non marital, and not merely extramarital, sexual activity that the court dislikes because this restraint doesn’t end when the parents get divorced.  Unless our culture wants to not merely accept but actively encourage adultery, a prohibition on exposing children to extramarital sexual activities is wise.  However the restraining order as currently commonly phrased is inelegant, and frankly a bit stupid.

One must remember that violation of a family court restraining order subjects the violator to the court’s contempt powers–currently a $1,500 fine, one year in prison, 300 hours of community service or any combination thereof.  Contempt can be civil if the goal is remedial, or criminal if the goal is punishment.  Since it’s not clear how one can remedy the violation of this restraining order–the common “go and sin no more” really doesn’t remedy the situation–violation of this restraint is increasingly treated as criminal contempt.  Thus, however this restraint is phrased, we need to make sure that we want to and are willing to put people in jail for violating it.   Even if many violations of this restraining order are never punished, there is still a chilling effect if a parent merely can be punished for violating this restraint.  Is a violation of this restraint, as currently worded, worth jailing folks over?

A father who allows his seven year old daughter to have a friend do a sleepover violates this restraining order if the friend is another seven year old girl.  After all, a member of the opposite sex unrelated by blood or marriage is spending the night.  While I’ve never had an attorney claim such sleepovers violated this restraining order, I have dealt with attorneys who claimed that teen sleepovers were violations, because my client could potentially have sex with his teenager daughter’s friends.

What about the father who allows his adult son to bring his girlfriend over for a visit but has another minor child still living there?  He violates this restraining order–even if the son and his girlfriend don’t share sleeping quarters.  One of the values I hope we are expected to teach our children is the value of hospitality.  This restraining order discourages reasonable hospitality.

A third example of how this restraining order can be overly broad occurs when long time family friends come for an overnight visit if one of the friends is a member of the opposite sex.  This is true even if that friend brings his or her spouse along.  None of my friends from college or high school could visit and bring their spouse without violating this restraining order.

A final example of this restraint’s lunacy occurs during family reunions.  If a mother brings her child and current boyfriend to a family reunion and everyone shares a large house, the mother violates the restraining order, even if the mother doesn’t share sleeping quarters with the boyfriend and even if her parents are there chaperoning the reunion.  Thus domestic situations that would have been considered proper amongst the landed gentry of early 19th century England are criminal acts in 21st century South Carolina family court.

In contrast, these restraining orders fail to prohibit behavior that I assume they are intended to prohibit.  A lesbian mother can have her girlfriend move in without violating this order because they aren’t members of the opposite sex.  A father can have his girlfriend come over at 12:01 a.m. and be there in the morning when the children wake up without violating this order because she isn’t there “overnight.”  I have actually seen someone successfully defend a claim of contempt on this issue by eliciting testimony that the lover left through a back entrance before midnight and returned through the same entrance after 5:00 a.m. and thus was not there “overnight.”  Finally note that with this restraining order in place a parent can openly copulate with his or her lover in the children’s presence so long as this copulation isn’t taking place overnight.

If our culture wasn’t so squeamish discussing sex there would be obvious ways to phrase this restraint to stop behavior the family court doesn’t like without making it a potentially criminal act to engage in innocuous behavior.  To do this the family court needs to decide what behavior it is really trying to prohibit.  Is it trying to prohibit all exposure to non marital sexual conduct, all exposure to extramarital sexual conduct, or merely behavior that indicates “shaking up” is an acceptable domestic arrangement?  Is it trying to prohibit any exposure to these behaviors, merely exposure to the parents’ behaviors, or exposure to actions that indicates the parents’ approval, or mere tolerance, of such behaviors?

Until we can have an honest discussion about sexual mores, we can’t frame a proper restraining order.  And until we properly frame this restraining order we are going to potentially punish a great deal of innocuous behavior while tolerating a large amount of much worse behavior.

 

  • Just a comment on the issue you raise about inelegant language. The common wording I use — and have seen many others use — is to prohibit people unrelated by blood or marriage “who could reasonably be construed as a paramour.” This also removes the unnecessary “member of the opposite sex” language. Obviously it’s not perfect, but it at least hits a little closer to the mark.

  • Maybe the restraint should be against criminal acts in the same structure or building with the children. See S. C. Code Ann. Section 16-15-70 for the criminal definition of adultery, 16-15-80 for the criminal definition of fornication, and 16-1t-60 for the punishment. I never believed the story but it has long been repeated at the York County Bar that in 1885 when my grandfather Thomas F. McDow Jr. took the oral bar exam before the Supreme Court of South Carolina, Chief Justice William D. Simpson asked, “Mr. McDow, what is the difference between fornication and adultery?” My grandfather supposedly replied “Absolutely none. I have tried them both.”

    I rarely seek, and almost always oppose, all restraining orders because most are too vague or ambiguous to be enforced. Some create a false sense of security. Sometimes they provoke arguments and fights where there would be none. Also, if the other party wants to do something stupid that will provide fodder for my cross examination, that suits me fine.

    I have publicly favored the criminal prosecution of fornication and adultery, not because it would stop either, but because it would cause the participants to be more discrete and would reduce the number of children with illegitimate parents.

  • Linda

    I’ve always loved the hypocrisy of an unmarried parent wanting this restraining order to prevent the other from having their new girlfriend/boyfriend around the child.

  • Lynn

    Another instance I wish to give, it was my intent during the final divorce proceedings to agree to only the visitation portion of the Judge Brown’s visitation schedule – and not the portion that related to the ‘restraining order’.
    I have come to find out that it is all or nothing.
    I am disabled and he is the primary caregiver of my teen children.
    I was planning a trip to see my family for the holidays and to bring my friend with me so I could manage the drive. He would stay in one guest room in my parent’s home and I would stay in another with my children. My x-husband objected stating I would be in direct violation of the court order if he were to stay under the same roof overnight as he is neither my husband nor my relative.
    I was unable to take the trip.
    I understand the original intent of perceived indiscretions on the part of the adults portraying to the children, but in order to change the specific wording and circumstances written in the order, I would need to seek a new judge’s ruling to overturn or amend the order.
    My x-husband would not consider agreeing to any modification just out of spite. He can easily follow the above comment and bring a lover into his home as long as there is no overnight between 11:59pm and 12:01am?

  • joe blackstock

    What if both parents are in contempt of restraining order? Is it a wash, or can they both be punished?

  • Elroy Lee Brown

    Why is it “stupid” to want to protect the children from seeing their mother or father with another person who is not married to them? The child has been through a lot just by virtue of the divorce, and yet it appears you have no problem with dumping even more on them by sleeping with someone else outside of marriage.

    Look at some of the research on the impact of divorce on children and try to view this matter from their standpoint. The psychological aspects of this has a lifelong impact and deserves consideration by the court. It may seem outdated to prevent someone going through a divorce from having extramarital sex, but when you consider the impact on the children involved, it truly is anything but “stupid.”

  • Nicole

    Would this apply to co parents who never married, and never had to divorce?

  • Jennifer

    What if the opposite sex is blood/ marriage related to the children, but not the parent. (ie: if the mother were to stay the night with the fathers parents, over a holiday, such as Christmas who live in another state?) Would the mother have to stay in a hotel room, rather than be able to stay in a guest room of the children’s grandparents home?

  • Connie

    So what they are basically saying is that a child can witness a relationship between and parent and a member of the opposite sex, who is not the other parent, all day long but not over night when the parent is not even sharing the same room with the other person? Smh.

  • Terri

    Is is permissible for “The Paramour”,whose name appears in our final decree to sleep over or possibly reside ( in the future) at my Ex’s house when my girls are there for the weekend.?????
    Under the SC Laws, what could be done to prohibit this?
    Your response would be greatly appreciated and duly noted!

  • Emily

    Now, regarding this restraining order, is it a violation if the father lives with his fiancee? The mother and father have both been court ordered to not have the opposite sex stay over night but does that apply if the couple is engaged?

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