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.