Building better restraining orders

A few weeks ago I blogged about what I considered ill-conceived child custody restraining orders. These restraints criminalized behavior that, while not ideal, are hardly incarceration worthy (e.g., no vulgarity around the children), criminalized behavior that is completely proper (one could not bring one’s boyfriend/girlfriend to a family reunion even if one slept in separate bedrooms), and are often so vague that one could not determine what behavior was forbidden.

This is an effect to develop better restraining orders. Suggestions appreciated.

Current restraint: Neither party shall expose the minor children to romantic companions, unrelated by blood or marriage, overnight.

Revised restraint: The parties shall not expose the minor children to their own non-marital sexual activities. This precludes having sex (as defined under South Carolina law) with the children present or sharing a bedroom with the children present. This is not a restraint against kissing around the children.

In much of the United States this restraint would be considered archaic. However significant portions of South Carolina’s government consider non-marital sexual activity to be immoral. Further there are plenty of studies showing that children are more likely to be sexually abused when there is a boyfriend living in their mother’s house. The current restraint forbids chaperoned outings or outings that take place late at night. The revised restraint prevents “shacking up” or exposing children to non-marital sexual activity without restricting other wholesome/innocent behavior.

Current restraint: Neither party shall expose the minor children or allow the minor children to be exposed to sexually explicit conduct, language, television, videos, movies, book, or other material of any kind or allow the minor children access to such material through unsupervised use of computers, smart phones, or other technology that may become commonly used in the future. All parties are retrained against allowing the child/children to see or be exposed to age inappropriate movies, computer access or websites, games or other such material or forms of entertainment and shall take all reasonable precautions against the same. In no case shall the children be exposed to any X-rated or pornographic material or R-rated movies.

Revised restraint: The parties shall not allow the children access to pornographic materials or have pornographic materials in their residence that the children can obtain access to.

Violence and sex are very much part of life and culture. Parents have the right to choose when and how to expose their children to art/culture that contains violent or sexual imagery. Other than pornography the court should not be imposing its choices on parents.

It doesn’t matter that parents might not agree on what is appropriate media. If one parent’s choice is harming the child, the court can always limit that parent’s contact with the child. Absent such harm–even in intact marriages, parents disagree on a lot of child rearing issues and ultimately each parent does what he or she thinks best during that parent’s time with the child. The court should butt out.

Current restraint: Neither party shall expose the minor children to violent conduct.

Revised restraint: The parties shall not engage in violence around the minor children nor expose the minor children to domestic violence.

The family court does not want children seeing their parents physically fight. This revised restrain prohibits that. The current restraint is overly broad. Many movies and television shows have violent conduct. Football and hockey are violent. The current restraint prevents parents from allowing their children access to much of our culture.

Current restraint: Neither party shall expose the minor children to the use or possession of illegal drugs or abuse of alcohol or prescription drugs.

Revised restraint: Neither party shall be intoxicated, abuse prescription drugs, or use illegal drugs, in the presence of the minor children or while the minor children are in their care.

One cannot live in America in 2017 and not be exposed to intoxicated people or the abuse of prescription drugs. A visit to a grocery store or any chain restaurant that serves alcohol likely violates the current restraint. While we don’t want children being raised by drunk, drug-abusing parents, the belief that we can shield children from our culture–a belief that permeates many of the restraining orders above–is a foolish myth.

It’s ironic that our conservative state culture decries the “nanny state” when it comes to economic activities but imposes a “nanny state” on parents who find themselves in family court. Restraints that protect children from clear harm are appropriate. Restraints that simply impose the court’s child rearing preferences on parents who appear before it are an improper use of judicial power.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Retain Mr. Forman
  • Anthony LaMantia

    Greg, as usual, you are on the mark. If you read the restraint against exposure of children overnight to one who could be reasonably construed as a paramour literally, there are a myriad of potential problems for which a client could be held in contempt. What if the restrained parent isn’t present overnight? Is that contempt? For example, what if the restrained parent is working so the child is babysat overnight by the Father’s fiancee? Is that contempt? What if the fiancee has a child who is close with the restrained party’s child? Can the restrained party allow their child to have a sleep over with their close friend at the fiancee’s home, even though the Father isn’t there?

    We definitely need clearer thought on these restraints.

  • Mindy

    You really do a Great job putting these articles together for a good read. Thanks for sharing. I agree with this statement: Restraints that protect children from clear harm are appropriate. Restraints that simply impose the court’s child rearing preferences on parents who appear before it are an improper use of judicial power. However this statement: significant portions of South Carolina’s government consider non-marital sexual activity to be immoral.,,,, EXCUSE ME, but who are they to be talking about immoral? Where is this list, with all of these perfect people? Maybe they need to practice what they preach. Which one is going to throw the 1st stone?

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