Mere exposure to domestic violence can be a basis to change custody or limit visitation

Posted Tuesday, October 23rd, 2018 by Gregory Forman
Filed under Child Custody, Of Interest to General Public, South Carolina Specific

Some of the most tragic consults I have are with folks who’ve been bullied and abused by spouses or domestic partners and have simply accepted the abuse as though they deserved it. The dynamic of such abuse, and why the abused often stay with their abusers, is better understood than it was when I started practicing twenty-five years ago. Still, its sad, and somewhat terrifying, to counsel someone who’s lived in an abusive situation.

The law is doing better, although still not perfectly, in protecting these women (it’s typically women who are abused, although I’ve represented a handful of men in these situations). Recent changes to S.C. Code § 16-25-20, have made it easier to prosecute Criminal Domestic Violence (CDV) and made the sanctions for various levels of conduct stronger. The revised CDV statute makes it unlawful to “cause physical harm or injury to a person’s own household member; or offer or attempt to cause physical harm or injury to a person’s own household member with apparent present ability under circumstances reasonably creating fear of imminent peril.” A number of circumstances can create a charge of CDV 2nd, which can result in up to three years in prison.  Combining multiple aggravating factors can lead to CDV 1st charges—a felony that can lead up to 10 years in prison.  Among the circumstances that frequently lead to a charge of CDV 2nd are a CDV conviction in the previous ten years, attempting to prevent the other person from contacting law enforcement or a medical provider about the domestic violence, or committing domestic violence “in the presence of, or while being perceived by, a minor.”

This stronger sanction for committing domestic violence in the presence of a minor develops from the law’s understanding that children are particularly damaged by exposure to domestic violence and a desire to break the cycle in which domestic violence is normalized because children observe their parents engaging in it. The law is starting to take children’s exposure to domestic violence very seriously.

Perhaps ironically, one result of this greater concern for children’s exposure to domestic violence is that victims of domestic violence often end up on the wrong side of the legal system because they did not protect their children from such exposure. S.C. Code § 63-15-240(B)(15) explicitly makes exposure to domestic violence a factor in child custody cases:

In issuing or modifying a custody order, the court must consider the best interest of the child, which may include, but is not limited to: … (15) whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child

Sometimes victims of domestic violence get embroiled in South Carolina Department of Social Services abuse and neglect investigations, with DSS seeking safety plans, intervention, or removal of the children of the abuse victim. DSS’s concern is that children need protection from a parent who will not protect his or her children from exposure to domestic violence. Another circumstance in which victims of domestic violence find themselves on the wrong side of the family court is when the abuser is not the children’s parent, but a step-parent or domestic partner. In these circumstances, the children’s other parent will often file an action to change custody or limit the other parent’s contact with the children under the theory that the abused parent failed to protect the children from the abuse.

While the law is showing greater empathy for victims of domestic violence, it is showing even more concern for the children who are exposed to this violence. Parents who are victims of domestic violence expend significant emotional (and sometimes financial) resources to protect themselves. Sometimes this leaves them with diminished resources to protect their children. However, parents who fail to protect their children from such exposure may find themselves losing custody or visitation.

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