You willing to go to jail over that?

Posted Thursday, April 14th, 2022 by Gregory Forman
Filed under Child Custody, Contempt/Enforcement of Orders, Jurisprudence, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

It amazes me how unseriously many folks subject to South Carolina child custody orders take the requirement of those orders. Per S.C. Code Ann. § 63-3-620:

An adult who wilfully violates, neglects, or refuses to obey or perform a lawful order of the court, or who violates any provision of this title, may be proceeded against for contempt of court. An adult found in contempt of court may be punished by a fine, a public work sentence, or by imprisonment in a local correctional facility, or any combination of them, in the discretion of the court, but not to exceed imprisonment in a local correctional facility for one year, a fine of fifteen hundred dollars, or public work sentence of more than three hundred hours, or any combination of them.

The purpose of civil contempt is to enforce an order. Therefore the sanctions listed above are lifted once the party who is violating the order comes into compliance. However, there is also criminal contempt, where the purpose is to punish rather than enforce compliance. With criminal contempt these sanctions can’t be waived. Many family court judges reasonably question how they can enforce compliance with a violation of a restraining order. Because the prior denial of visitation can damage the parent-child relationship, some even question whether make-up visitation can leave a party whole. Thus, these judges have concluded that, in some cases, a denial of a visitation or a violation of a restraint provision of a custody order is best addressed by the imposition of criminal contempt sanctions.

The upshot is one can go to jail for denying visitation or violating a child-related restraining order. Knowing this has affected my practice in two distinct ways. First, I urge my clients to strongly fight attempts to award visitation to third parties unless the law and facts are overwhelmingly in that third-party’s favor. While it may be “nice” or “easy” to allow grandma visitation with one’s child, few of my parent-clients wish to risk jail if they decide the grandparent-grandchild relationship has become problematic. Many of my colleagues frame the issue, “why wouldn’t your client want his/her child to spend time with a grandparent?,” I frame the issue, “why would my client want to risk jail if he/she believes the grandparent is acting inappropriately with the child?”

Second, I am very cautious about agreeing to well-meaning restraining orders. While I don’t deny that cursing around one’s children isn’t ideal, I know few parents who never slip up. In South Carolina, the parents subject to restraints against using vulgar language around their children risk going to jail if they do so. I have similar issues with restraints against exposing the children to violent or sexual conduct or “age-inappropriate” media. Not only are these restraints vague, but they probably unduly limit a child’s exposure to much of the culture their peer enjoy. And the restraint against posting information about the child or the litigation to social media–a restraint I see with increasing frequency–likely violates the right to free speech.

Even the restraints that clearly make sense–no disparagement around the child of the other parent or that parent’s family; no intoxication or illegal drug use around the child; no overnight paramour exposure–become problematic when the risk of jail is involved. No one wants parents bad-mouthing the other around the child; I’m not sure we want parents going to jail if that occurs. Some part of my role of “counselor-at-law” is instilling in my parent-clients the fear of jail if they fail to follow family court order restraints. It’s amazing how many such clients are both unaware of their risk of jail and unfamiliar with all the restraints in their custody order.

I’m not sure our Founding Fathers envisioned a court of equity in which judges could incarcerate individuals without a jury trial but that is where we are in 2022 South Carolina. It behooves South Carolina family law attorneys and their clients to be cognizant of that fact.

One thought on You willing to go to jail over that?

  1. Adam Wade says:

    100% agree while is very difficult I 100% agree!

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