Family Law

The Protection from Domestic Abuse Act is a law in South Carolina to protect wives and husbands, former spouses, children and other close relatives from physical harm, threat of harm or criminal sexual conduct by providing help through family court to get a protective order. Physical abuse occurs in various forms - being kicked, punched, slapped, shoved, sexually molested or harmed bodily in any way.

The person who has been abused or threatened with abuse can ask for help from family court under the civil laws. If the abused or threatened person is under age 18 another family member can ask the family court for help.

You do not need a lawyer to get a protective order. Go to the clerk of court in the county where the abuser lives, where you last lived together or where you live if you cannot find the abuser. The clerk of court can give you forms to file your own papers and will schedule a hearing on the matter. If you cannot afford to pay the filing fees, the clerk will show you how to file without a fee.

During times when the court is closed, you may go to a magistrate to get a protective order. A protective order issued by the family court can tell the abuser to stop abusing you and to leave the home. Family court orders can also order temporary child custody, child support and visitation rights, and possession of your personal items such as clothes and medicine. Protective orders issued by magistrates are more limited and can only tell the abuser to stop abusing you.
You do not have to file for divorce to get a six month protective order. The parts of the order about support, custody, visitation and personal property last only 60 days if you do not file for divorce or legal separation.

If you have a lawyer and have already filed for divorce or separation, your lawyer can ask the court for an emergency protective order if you need it.
When you go to court for the hearing, try to take with you witnesses, pictures of your injuries, police reports, medical reports, your financial information and any other evidence you have to prove that you were abuse.

A copy of any protective order issued will be mailed to you, the abuser, and the local law enforcement agency where you live. The sheriff's department can help see that this protective order is enforced.

If the abuser violates your protective order, immediately contact the police, the clerk of court or your lawyer. It is a crime to violate this order; the sentence can be up to 30 days in jail or a fine of $200. It also could be contempt of court to violate a protective order; the punishment is up to one year in jail and/or a fine up to $1500 and/or 300 hours community service.

In addition to the relief discussed above under the Protection from Domestic Abuse Act, separate criminal charges for criminal domestic violence may be filed against your abuser. This relief is available not only to family members but also persons who live together or who live together but never been married. To file criminal charges, contact your local magistrate. If convicted, the abuser can be fine up to $200 or imprisoned for up to 30 days. Repeat offenders face greater penalties.

This information was prepared to give you some general information on the law. It is not intended as legal advice about any particular problem. If you have questions about the law you should consult a lawyer. If you do not know a lawyer, you can call the South Carolina Bar Lawyer Referral Service weekdays between 9 a.m. and 5 p.m. The number is 803-799-7100.

Video

In South Carolina, grandparents’ rights are derivative of their child’s rights. This means that in typical circumstances, a grandparent may visit with a grandchild only when the grandparent’s child has visitation.

The law is clear that parents have a protected liberty interest in the care, custody, and control of their children, and that this is a fundamental right protected by the Due Process Clause in the United States Constitution. The court must give "special weight" to a fit parent's decision regarding visitation. A court considering grandparent visitation over a parent’s objection must allow a presumption that a fit parent’s decision is in the child's best interest. So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parents children. Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565 (2003).

The Family Court can grant visitation to a third party (not just limited to a grandparent) over a fit parent’s objection when faced with compelling circumstances, such as significant harm to a child. Compelling circumstances will be determined on a case-by-case basis, but the Court will consider pursuant to S.C. Code Ann. § 63-15-240 the children's best interests in deciding custody, and the judge considers several factors including: the needs and preferences of the child; the child’s relationship with siblings or other persons; the stability of residences; the mental and physical health of all involved; and past or present abuse and neglect. However, it is not enough just that a child may benefit from contact with a grandparent.

When one parent dies, the parents of the deceased may still be able to have visitation rights if the meet the criteria in S.C. Code Ann. § 63-3-530(33), which allows visitation for a grandparent when either or both parents of the child are deceased, or are divorced, or are living separate and apart in different habitats. To award visitation under this law, the court must find that:

1. The child's parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation of the minor child to the grandparent for a period exceeding 90 days; and
2. The grandparent maintained a relationship similar to a parent-child relationship with the minor child; and
3. That awarding grandparent visitation would not interfere with the parent-child relationship; and:
   1. The court finds by clear and convincing evidence that the child's parents or guardians are unfit; or
   2. The court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the child's best interest.

South Carolina also recognizes the doctrine of a psychological parent, which could apply to a grandparent is some circumstances. There is a four-part test which is used to evaluate whether or not a person qualifies as a psychological parent:

1. The child’s biological or legal parent or parents consented to and facilitated the formation and establishment of a parent-like relationship with the child;
2. The petitioner and the child lived together in the same household;
3. The petitioner undertook obligations of parenthood through responsibility for the child’s care, education, and development without expectation of financial compensation;
4. The petitioner has been in a parental role for a length of time sufficient f or a parental bond to be established with the child. Middleton v. Johnson 369 S.C 585, 633 S.E.2d 162 (Ct. App. 2006).

According to S.C. Code Ann. § 63-15-60, a grandparent may also qualify as a de facto custodian in some circumstances. A de facto custodian means, unless the context requires otherwise, a person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who:

1. Has resided with the person for a period of six months or more if the child is under three years of age; or
2. Has resided with the person for a period of one year or more if the child is three years of age or older.

In gathering information to assist in making a decision, a judge may use investigative agencies, psychologists and others. The Judge may also appoint a lawyer to represent the interest of a child or children.

This information was prepared to give you some general information on the law. It is not intended as legal advice about any particular problem. If you have questions about the law you should consult a lawyer. If you do not know a lawyer, you can call the South Carolina Bar Lawyer Referral Service weekdays between 9 a.m. and 5 p.m. The number is 803-799-7100.

SC Equality is a statewide non-partisan coalition of local and state social, religious and political LGBT organizations and allies with a mission to secure civil and human rights.

SC Equality has a number of useful fact sheets that cover LGBT issues.

Relationship Recognition & Protection
Non-Discrimination
Safe & Just Schools
Transgender Inclusion & Protection
Hate Crimes & Violence Prevention

For Parents
Parental Recognition & Protections

According to data from the Movement Advancement Project, 1 in 4 of South Carolina's same-sex couples are raising children -- that is a lot of mothers, fathers, and children who face daily uncertainty. While state's laws simply do not address same-sex couples, there are steps that can be taken to maximize your rights as parents.

• Guardianship Agreement
  • Document allows the biological parent to clearly indicate the caregiver of choice in the event that something happens. 
  • May help prevent conflict among family members
  • Gives guidance to the court in the event of a family conflict
• Co-parenting Agreement
  • Allows couples to share parental responsibilities of a child when legal adoption is not available.
  • Can include:
    • Consent for medical care of child
    • Proposed Custody Agreement in the event of separation  

Co-parenting Agreement

Same Sex Adoption in South Carolina

An attorney should be consulted to draft these types of agreements.

This information was prepared to give you some general information on the law. It is not intended as legal advice about any particular problem. If you have questions about the law you should consult a lawyer. If you do not know a lawyer, you can call the South Carolina Bar Lawyer Referral Service weekdays between 9 a.m. and 5 p.m. The number is 799-7100.