Domestic Abuse: The Potential Pitfalls (September 2000)
Material for South Carolina Bar “Hot Tips” Lecture, September 2000
South Carolina’s Domestic Abuse statute has numerous potential procedural and substantive traps for the unwary practitioner. In an situation in which the alleged abuser can be made a defendant in a custody or marital dissolution action, bringing those actions is a much less risky approach.
The Domestic Abuse statute has an extremely broad definition of abuse, defining it as: “Physical harm, bodily injury, assault, or the threat of physical harm” or “Sexual criminal offenses, as otherwise defined by statute, committed against a family or household member by a family or household member.” S.C. Code Ann. § 20-4-20. There is no case law interpreting this definition and, given the temporary duration of domestic abuse orders, case law is unlikely to develop on this issue. Except in egregious cases, the practitioner can provide his or her client little guidance as to whether the court will find domestic abuse. Some judges will issue domestic abuse orders without finding domestic abuse to get the parties separated and give them a chance to settle-down; other judges will only find domestic abuse in cases of documented injuries requiring medical attention.
Domestic abuse cases have numerous issues that can trip up a practitioner unfamiliar with the statute. Section 20-4-40 sets forth information that must be pled in a domestic abuse petition The petition “must state the specific time, place, details of the abuse, and other facts and circumstances upon which relief is sought and must be verified.” § 20-4-40 (b). That same section also notes, “In a pending action for divorce or separate support and maintenance, the petition for relief shall be brought in the form of a motion for further relief and shall be served on counsel of record, if any.” § 20-4-40 (d). Judges have dismissed domestic abuse petitions brought as a separate action where there was an outstanding separate maintenance case.
Further, domestic abuse petitions must be served at least five days prior to the hearing, unless good cause is shown, in which case the court may hold a hearing within twenty-four hours of service. § 20-4-50. A specific form, SCCA/420, needs to be filled out when attempting to set a domestic abuse hearing on twenty-four hours notice. Where such service is not accomplished five days prior to the hearing, the respondent, upon his motion, is entitled to a continuance until such time is necessary to provide for compliance with this section. § 20-4-50.
There is a danger in filing a domestic abuse petition rather than bringing an action for custody , separate maintenance or divorce. In bringing a domestic abuse petition rather than a physical cruelty divorce or custody case, the respondent is able to question the petitioner, under oath, and in front of a judge, prior to the filing of a marital dissolution or custody action. Further, the respondent will have a verified statement of the petitioner prior to the hearing, which can be effective for cross-examination of the petitioner or development of contradictory testimony.
If a domestic abuse petition seeks temporary spousal support, the respondent will be entitled to ask questions regarding the petitioner’s income and fault in the marital breakup (e.g., adultery), as well as any other issues germane to alimony. If a domestic abuse petition seeks child custody, the respondent will be entitled to ask questions regarding both parties’ fitness as the custodial parent.
The courts will generally allow the respondent’s counsel about fifteen minutes to question the petitioner on custody and alimony issues. During that time, a skilled attorney can elicit useful and damaging information regarding the petitioner’s behavior and helpful admissions regarding the respondent’s parenting abilities. Often the respondent will not even testify at such hearings. There are cases in which a petitioner has prevailed in showing domestic abuse, only to lose custody of the child or have support terminated at a subsequent temporary hearing based on the petitioner’s testimony at the domestic abuse hearing.
The decision in Watson v. Watson, 319 S.C. 92, 460 S.E.2d 394 (1995) authorizes the family court to entertain an action for adultery, physical cruelty or habitual drunkenness or drug use where the parties are not separated. If a prima facie showing of fault grounds is made at the temporary hearing, the court can order the at-fault party out of the marital home. Given this, bringing a physical cruelty divorce is much less risky than filing a domestic abuse petition.