Procedural Issues in Domestic Abuse Cases (June 2008)
Material for Charleston County Bar CLE–June 2008
South Carolina’s Protection from Domestic Abuse statute, S.C. Code Ann. § 20-4-10, et seq, may be concise but it is hardly clear. One of the few published South Carolina appellate decisions to interpret this act, Moore v. Moore, 376. S.C. 467, 657 S.E.2d 743, 750, n.6 (2008) noted:
In light of the problems highlighted by this case, we invite the Legislature to revise the Protection from Domestic Abuse Act in order to: clarify the non-adjudicative nature of the emergency hearing; and define the temporary status of an Order of Protection as well as the findings associated with the issuance of such an order.
Emergency versus Non-Emergency Hearings
Many of the procedural issues in domestic abuse cases stem from the distinction between “emergency” domestic abuse hearings and non-emergency domestic abuse hearings. That distinction is explained in § 20-4-50:
(a) Within twenty-four hours after service of a petition under this chapter upon the respondent, the court may, for good cause shown, hold an emergency hearing and issue an order of protection if the petitioner proves the allegation of abuse by a preponderance of the evidence. A prima facie showing of immediate and present danger of bodily injury, which may be verified by supporting affidavits, constitutes good cause for purposes of this section.
(b) If the court denies the motion for a twenty-four-hour hearing or such a hearing is not requested, the petitioner may request and the court must grant a hearing within fifteen days of the filing of a petition. The court must cause a copy of the petition to be served upon the respondent at least five days prior to the hearing, except as provided in subsection (a), in the same manner required for service in the circuit courts. Where 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.
The following chart compares the procedural differences between emergency and non-emergency domestic abuse hearings:
|Hearing Set||Within 24 hours. § 20-4-50(a)||Within 15 days. § 20-4-50(b)|
|Notice||Within 24 hours. § 20-4-50(a)||At least five days. § 20-4-50(b); probably five business days. SCRCP 6(a)|
|Burden of Proof||Preponderance of the evidence. § 20-4-50(a)||Not stated. Probably preponderance of the evidence. There has to be finding of an “abused person” as defined by the statute (§ 20-4-20(a)) in order for the court to issue an order of protection. § 20-4-60|
|Right to de novo review||Probably. Moore, 657 S.E.2d at 748||Unclear. Because it is a final adjudication, probably not|
|Nature of Relief||Temporary. Moore, 657 S.E.2d at 750||By implication of Moore, not temporary, though a domestic abuse order eventually expires pursuant to provisions of § 20-4-70(a)|
|Determination||Not a final adjudication. Moore, 657 S.E.2d at 750-52||A final adjudication. Moore, 657 S.E.2d at 750|
“[A]n Order of Protection issued pursuant to an emergency hearing is temporary and … a hearing on the merits of the action should, if necessary, be conducted by the family court at a later date. This procedure would then enable a petitioner and a respondent to procure counsel in order to actively and thoroughly participate in an adjudicative hearing on the merits of the action.” Moore, 657 S.E.2d at 750.
The distinction between a domestic abuse finding being adjudicative and non-adjudicative is vital to ancillary issues stemming from domestic abuse hearings. As noted in Moore an adjudicative finding of domestic abuse:
- Requires the abuser to immediately relinquish any weapons in his possession or be subject to federal prosecution pursuant to 18 U.S.C.A. § 922. Moore, 657 S.E.2d at 747.
- Can be used in support of a ground for divorce (physical cruelty); the award of custody; a fault factor for the award of alimony; and a factor to be taken into consideration for the equitable apportionment of the marital assets. Id.
- Could potentially be used in a civil claim for recovery of actual or punitive damages caused by the physical abuse. Id.
The jurisdictional statute, S.C. Code Ann. § 20-4-30 really deals with venue. Under this section, venue is proper in the county in which the parties last resided together, the county in which the abuse occurred or the county in which the respondent lives. The petition may be filed in the county in which the petitioner lives but it must be transferred to one of the counties that meet the venue requirement and a supplemental petition must be filed. § 20-4-30(C).
The petition for protection from domestic abuse “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). “The petition must inform the respondent of the right to retain counsel.” § 20-4-40(c). “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. Where no action is pending, the petition shall be filed and served as an independent action.” § 20-4-40(d).
Household Member Requirement
An “Order of protection” means “an order of protection issued to protect the petitioner or minor household members from the abuse of another household member…” § 20-4-20(f). “A petition for relief must allege the existence of abuse to a household member.” § 20-4-40(b). Thus orders of protection can only be issued between categories of persons defined as “household members.”
Household member is defined as “(i) a spouse; (ii) a former spouse; (iii) persons who have a child in common; (iv) a male and female who are cohabiting or formerly have cohabited.” § 20-4-20(b). S.C. Code Ann. § 20-4-40(a) adds that “A petition for relief under this section may be made by any household members in need of protection or by any household members on behalf of minor household members.” This would seem to add the domestic abuse protections to minors in a household, as children in the household are not part of the class of household members listed in § 20-4-20(b).
Note that the following are not household members (and therefore do not fall under the domestic abuse statute protections): gay couples (unless they have a child in common); romantic couples who have not cohabited or formerly cohabited; siblings; children who are not minors; roommates (unless they meet one criteria for “household members”); the current spouse and prior spouses of same person (e.g., first wife and second wife).
The act defines “Abuse” to mean: (1) Physical harm, bodily injury, assault, or the threat of physical harm; or (2) Sexual criminal offenses, as otherwise defined by statute, committed against a family or household member by a family or household member.” § 20-4-20(a). Actual physical abuse is not required to sustain a finding of domestic abuse. “[T]he threat of physical harm ‘is sufficient to constitute a basis for the issuance of an Order of Protection as the result of an emergency hearing’. .. [A] showing of ‘immediate and present danger of bodily injury’ denotes that the threat of a future occurrence provides the basis for an Order of Protection and, thus, a definitive finding of physical abuse is not mandated.” Moore, 657 S.E.2d at 750 (citation omitted).
The petitioner’s right to relief is not affected by leaving the residence or household to avoid further abuse. The petitioner’s right to relief is not affected by the use of such physical force against the respondent as is reasonably believed by the petitioner to be necessary to defend the petitioner or others from imminent physical injury or abuse. § 20-4-120.
It is unclear under the statute whether the respondent can claim self defense or defense of others as a defense to a domestic abuse action. Actions taken in self defense can clearly meet the definition of “abuse” under the domestic abuse act. Should such self defense give rise to a finding of domestic abuse?
Logically, it should not. If the petitioner’s use of defensive force does not affect the right to seek a domestic abuse finding, it should follow that the respondent’s use of defensive force would not constitute domestic abuse. I have often used the argument “it’s not who won the fight but who started the fight” in defending domestic abuse petitions. However, until some enterprising attorney makes case law (or until the statute is clarified) this issue is unsettled.
If the court determines that domestic abuse has occurred it may: enjoin the respondent from abusing, threatening to abuse, or molesting the petitioner or the person or persons on whose behalf the petition was filed; enjoin the respondent from communicating or attempting to communicate with the petitioner in any way which would violate the provisions of this chapter; and temporarily enjoin the respondent from entering or attempting to enter the petitioner’s place of residence, employment, education, or other location as the court may order. § 20-4-60(a). Violation of these provisions is a misdemeanor, and, upon conviction, the violator must be imprisoned not more than thirty days and fined not more than five hundred dollars. S.C. Code Ann. §16-25-20(E).
Note that the domestic abuse statute does not authorize the court to issue an order restraining the abuser from “coming about the other’s residence or place of employment.” This is a serious flaw in the statute. I once brought a rule over an alleged violation of a domestic abuse order in which the respondent stood at length on the sidewalk outside my client’s place of employment and circled repeatedly on the cul-de-sac where she lived. The matter settled during trial but I was not at all certain that respondent’s behavior violated the domestic abuse order (even thought it is clearly the type of behavior domestic abuse orders are supposed to prevent).
When a domestic abuse order is issued the court may also: (1) Award temporary custody and temporary visitation rights with regard to minor children living in the home over whom the parties have custody; (2) Direct the respondent to pay temporary financial support for the petitioner and minor child unless the respondent has no duty to support the petitioner or minor child; (3) When the respondent has a legal duty to support the petitioner or minor children living in the household and the household’s residence is jointly leased or owned by the parties or the respondent is the sole owner or lessee, grant temporary possession to the petitioner of the residence to the exclusion of the respondent; (4) Prohibit the transferring, destruction, encumbering, or otherwise disposing of real or personal property mutually owned or leased by the parties or in which one party claims an equitable interest, except when in the ordinary course of business; (5) Provide for temporary possession of the personal property of the parties and order assistance from law enforcement officers in removing personal property of the petitioner if the respondent’s eviction has not been ordered; (6) Award costs and attorneys’ fees to either party (7) Award any other relief authorized by § 63-3-530; provided, however, the court must have due regard for any prior Family Court orders issued in an action between the parties. § 20-4-60(c).
No protective order issued may, in any manner, affect the title to real property. § 20-4-60(d). No mutual order of protection may be granted unless the court sets forth findings of fact necessitating the mutual order or unless both parties consent to a mutual order. § 20-4-60(e).
An order of protection must be for a fixed time not less than six months nor more than one year. Either party may move for extension of the order “upon motion by either party showing good cause with notice to the other party.” § 20-4-70(a). A respondent has the right to a hearing on the extension of an order issued pursuant to this section within thirty days of the date upon which the order will expire. Id.
Provisions included in an order of protection must be enforced until further order of the court following the issuance of the order unless before the expiration of the period the court has scheduled a hearing pursuant to the filing of an action for divorce or separate support and maintenance to determine the temporary rights and obligations of the parties with respect to support of a spouse or children, custody and visitation, or the distribution of personal property. If the hearing has been scheduled, relief granted under Section 20-4-60(c) remains in effect until an order pursuant to the hearing is issued by the court. § 20-4-70(b).
Why File a Domestic Abuse Action?
One obvious reason to file a domestic abuse action is that one’s client has been abused and there is no reason or ability to file a marital dissolution action or a child custody action.
However, when filing a marital dissolution action or a child custody action is an option, there is still one circumstance in which filing a domestic abuse action first makes sense. That circumstance is when there is overwhelming or irrefutable evidence to support a finding of domestic abuse. In such circumstances obtaining a finding of domestic abuse provides one’s client with substantial immediate relief at a relatively low cost and, if the five-day hearing is held, a binding adjudication of domestic abuse. If the parties are married, and the client is happy with the resulting domestic abuse order, that client can then wait until right before the domestic abuse order expires and then file for divorce. If, in the meantime, the other party does not wish to live under the relief granted in the domestic abuse order, he or she is left having to file a marital dissolution action to modify the support and custody provisions of the domestic abuse order but is handicapped by the adjudicative determination of domestic abuse.
If the parties are not married, custody is an issue, and the client is happy with the resulting domestic abuse order, that client can then wait until a few months before the domestic abuse order expires and then file for custody. Again, if, in the meantime, the other party does not wish to live under the relief granted in the domestic abuse order, he or she is left having to file a custody action to modify the domestic abuse order but is handicapped by the adjudicative determination of domestic abuse. See S.C. Code Ann. § 63-15-40. (In making a decision regarding custody of a minor child, in addition to other existing factors specified by law, the court must give weight to evidence of domestic violence as defined in Section 16-25-20 or Section 16-25-65 including, but not limited to: (1) physical or sexual abuse; and (2) if appropriate, evidence of which party was the primary aggressor, as defined in Section 16-25-70).
An adjudication of domestic abuse greatly changes the dynamics of any marital dissolution or custody action. Where it is clear that such a finding can be obtained, it should be before marital or custody litigation is commenced. The decision whether to bring a domestic abuse petition on an emergency or non-emergency basis requires strategic thought. It is unlikely that the courts will be happy with an attorney who seeks both hearings in circumstances in which a custody or marital dissolution action could be brought. In such circumstances, one should seek an emergency hearing if the client is in need of immediate protection and an adjudicative determination of abuse is less important. Where the adjudicative determination of abuse is the primary objective, one should seek a non-emergency hearing.
 It is unclear whether this section contains a typographical error. A respondent would never want a domestic abuse order extended. Yet the code section grants the respondent, not the petitioner, the right to request and have a hearing on an extension.