Because they are often brought simultaneously litigants often confuse protection from domestic abuse cases and criminal domestic violence cases. While these cases have similar proof elements they have different parties, different goals, and are handled in different courts. Only state prosecutors can pursue criminal domestic violence charges while private attorneys can pursue domestic abuse claims.

Criminal domestic violence (CDV) is a criminal charge brought pursuant to the authority of S.C. Code § 16-25-20. The party prosecuting the action is the State of South Carolina and the alleged perpetrator is called the Defendant. The matter is handled in magistrate or municipal court if the charge is CDV 3rd and in general sessions court if the charge is CDV 1st or 2nd. The judge handling it will either be a magistrate or municipal court judge (for CDV 3rd) or a circuit court judge (for CDV 1st or 2nd). The purpose of such prosecutions is to protect the public from the unsafe acts of a person who is violent towards his or her family. Often, as part of the Defendant’s bond, he or she will be prohibited from contacting the victim or coming to the victim’s home or place of employment. However the victim is not a party to the case.

In a CDV case, the Defendant is entitled to a jury trial. The Defendant will either be found guilty or not guilty (a decision not to prosecute is treated as a not guilty finding). The proof for conviction is beyond a reasonable doubt. As a result of any conviction, the Defendant will have a criminal record and face criminal sanctions (incarceration/probation; a fine; community service).

Protection from Domestic Abuse is a family court procedure falling under South Carolina Code Title 20, Section 4. The matter is handled in the family court and will be resolved by a family court judge. The Plaintiff/Petitioner is the alleged victim of domestic abuse and the Defendant/Respondent is the alleged perpetrator. The Petitioner only needs to establish domestic abuse by a preponderance of the evidence standard.

Upon a finding of domestic abuse, the family court has numerous remedies. It can issue a restraining order against the Respondent from abusing, threatening to abuse, or molesting the Petitioner or from communicating or attempting to communicate with the Petitioner. If the parties reside together, the family court can give the Petitioner temporary possession of the residence. If the parties have minor children together, the family court can address custody and child support issues. If the parties are married, the family court can award the Petitioner spousal support. The are all temporary remedies that expire after a set time.

The South Carolina Supreme Court case of Moore v. Moore, 376 S.C. 467, 657 S.E.2d 743 (2008), established that findings of domestic abuse from cases brought on an emergency basis could not have collateral consequences–that is, the finding of domestic abuse could not be used in subsequent proceedings. For domestic abuse cases brought on a non-emergency basis, the finding (or lack of finding) can be used as definitive proof (or lack of proof if the finding is that abuse did not occur) in subsequent domestic litigation and as a basis (or defense) for a personal injury claim.

While there is no reason a victim of domestic violence should not pursue both CDV charges and for protection from domestic abuse, the procedures, goals, and remedies are different for each.

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

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