Protection from Domestic Abuse Cases

Protection from Domestic Abuse Cases

South Carolina’s Protection from Domestic Abuse Act was 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.  It was not intended to require domestic violence attorneys to prosecute or defend.  However these short-notice, short-hearing proceedings can have permanent ramifications on issues of custody, divorce, and alimony.  Domestic violence attorneys can also radically alter the negotiation leverage of the parties on temporary issues.  Experienced attorneys for domestic violence can be vital to prosecuting or defending domestic abuse claims.

What is Domestic Abuse Law

The South Carolina 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. Make sure you consult a lawyer for domestic violence when putting together a domestic violence defense.

What happens at domestic abuse hearings

A domestic abuse hearing is like a small trial.  The court will take testimony and the witnesses will be subject to cross examination.  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 law infraction, 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.

Consequences of a domestic abuse finding or non finding

If one does not like the results from a domestic abuse order, one has the option of filing a marital dissolution 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 the temporary relief motion.

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. The importance of having an experienced domestic violence attorney in a domestic abuse proceedings is even greater when the proceeding is not brought on an emergency basis. If you would like to retain Gregory Forman as your domestic violence attorney please contact him here.

 
 

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