The latest insane restraining order making the South Carolina family court rounds

Posted Friday, June 17th, 2022 by Gregory Forman
Filed under Child Custody, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

I am on repeated record in finding numerous provisions of the typical South Carolina custody order to be overly broad, stupid, and frankly reckless.  Over my 28+ years of family law practice, they’ve spread like kudzu, and are about as hard to kill off.

In the past month I’ve twice encountered a new restraint.  Like many of the past restraints, some attorney or judge saw fit to add it and it appears my colleagues soon reflexively adopted it.  Like many of the restraints I critique, this one appears well meaning.  But, frankly, once it’s given a moment’s consideration, its flaws are revealed.  That restraint is, “no exposure to a romantic companion prior to dating that person exclusively for at least 6 months.”

At first glance this restraint gets at something important.  No family court judge or child psychologist likely thinks it’s a good idea for a young child to be introduced to every rando mommy or daddy is smashing.  But like many of these well-meaning restraining order, this one is both vague and way too broad.

It’s vague because the term “dating that person exclusively” appears well defined but isn’t.  What if the parent isn’t dating anyone else but the person they are dating is catting around?  What is someone simply has gone on two dates (and no other dates) six months apart?  How would one even prove a parent was dating exclusively?  That last question may be less problematic in this social-media besotted era: some folks can’t resist documenting their lives virtually, even those parts that should remain private.  Still, most folks who are dating around are sensible enough not to leave evidence that they are a playa.  I anticipate numerous contempt battles over this issue.

The bigger problem is that six months into an “exclusive” dating situation is way too long to wait before introducing a potential step-parent to a child. One assumes every marriage-minded parent is concerned whether the child gets along with the potential step-parent. One also assumes that every marriage-minded parent who is dating “exclusively” is pretty serious about the relationship six months in. If the child and potential step-parent don’t get along, the parent has three problematic options: 1) try to develop a better relationship between the two in the hope that they will get along well enough that marriage won’t cause disharmony; 2) simply continue the relationship and suffer potential custodial consequences if the child continues to dislike the potential step-parent; 3) end a romantic relationship that was serious enough to be exclusive for six months.

I understand that there are child psychologists recommending this six-month waiting period but I doubt they are giving much thought into how exclusive adult relationships develop in an era where non-marital sexual relationships are routine.  Folk are pretty invested six months into such relationships and that’s too long to wait to learn that the child hates the new boyfriend/girlfriend or vice versa. If there’s going to be a waiting period, one to two months seems to better balance a desire to not expose children to randos against a need to test whether a child and potential step-parent interact well.

My colleagues’ enthusiasm to add new restraints that sound good in theory but have obvious flaws in practice continues to astound and amuse me.  When I had unemancipated children I worked through rough patches in my marriage—in part—to avoid such family court silliness.  One might think that if my colleagues lived under these restraints in their own lives they would lose their enthusiasm to impose them on others. However, many of my colleagues live under these restraints and it doesn’t appear to deter them.  Inexplicable.

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