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A Blog

How the Law Effects Children of Parents Exposed to Domestic Abuse in Divorce and Child Custody Cases

Whether it’s for a divorce or a custody dispute, its rarely a happy period in the lives of most clients when they seek out the help of a family law attorney. However, there is nothing truly as heart breaking as when one spouse is having to endure domestic violence. It is a dynamic that is truly hard to explain to people that have never encountered or dealt with the issue. All to often you hear people say things like “well, if it was really all that bad, why didn’t she just leave.” If only it were that simple. Throughout the course of my career in helping victims of domestic violence I have seen individuals of all races, educational level, economic situations, religious views. People truly of all walks of life. There is however one thing that seems to unite all victims. Fear.
Whenever I have a consult with a woman who is a victim of domestic violence, you usually hear the same reasons as to why they CAN’T leave. Among the most common are: “His name is on the titles to the house and cars, I have no place to go and no way to get there; he is the bread winner, I haven’t worked in years and have only been a stay at home mom. I have no way of getting a job and taking care of my children.” Through all the reasons given, most women feel that they are doing what is best for their children, their safety and well-being.
Laws prosecuting those who commit domestic violence are getting better and strong. Recent changes in South Carolina laws have made it easier to prosecute offenders and provide stiffer penalties. While the law is slowly getting better for the victims of domestic violence, these changes fail to compare to the concern for the well-being of children who are exposed to domestic violence. In seeking a modification in a custody order or in an action for custody, the argument can be made that if a parent can’t even protect themselves, how do they have any ability to protect their children. This agreement has become more and more persuasive in Family Court cases and parents that are victims of domestic violence are finding themselves on the losing end of divorce and custody cases.

Contested vs. Uncontested Divorces

What is the difference between a "contested divorce" and an "uncontested divorce?” Simply put, a “contested divorce" refers to when a couple disagrees on some issue concerning a divorce. The parties, through their lawyers, present evidence to a Family Court Judge who makes the ultimate determination on the issue in accordance with State law or, in the case of child custody, in the best interest of the child or children. An "uncontested divorce" when the couple are able to completely resolve all their own issues without a single disagreement. In order for this to happen, the spouse must be able to agree on the division of assets, custody of children, visitation schedules, child support payments and alimony. When this occurs the husband and wife put the agreement in writing. A hearing before a Family Court Judge is still required for the approval of the agreement and issuance of a final divorce decree, however, the Court’s Order will be the adoption of the parties’ agreement. This means that the spouses can control the outcome of their case without the worry and expense of a contested hearing. The vast majority of cases start off as contested divorces, but usually end up settling. This is most often done through the mediation process where a neutral third party helps the spouses reach their own resolutions to their issues. It is for this reason alone that the mediation process is so valuable and it is critical to obtain the services of a skilled mediator to help the parties avoid unnecessary conflict.


Placement of Children With Relatives

In order for States to receive Federal payments
for foster care and adoption assistance, Federal
law under title IV-E of the Social Security Act
requires that they “consider giving preference to
an adult relative over a nonrelated caregiver when
determining placement for a child, provided that
the relative caregiver meets all relevant State child
protection standards.”1 Title IV-E further requires
States to exercise due diligence to identify and
provide notice to all grandparents and other adult
relatives of the child (including any other adult
relatives suggested by the parents) regarding (1)
the fact that the child has been or is being removed from the
custody of his or her parents, (2) the options the relative has to
participate in the care and placement of the child, and (3) the
requirements to become a foster parent to the child.2
Each State defines “relative” differently, including relatives
by blood, marriage, or adoption ranging from the first to
the fifth degree. Generally, preference is given to the child’s
grandparents, followed by aunts, uncles, adult siblings, and
cousins. For Indian children, nine States allow members of the
child’s Tribe to be considered “extended family members” for
placement purposes.3
Approximately 45 Statesand Puerto Rico give preference or
priority to relative placements in their statutes.4 Massachusetts,
Ohio, Wyoming, and the District of Columbia require childplacing
agencies to give preference to placements with relatives
in regulation. In 17 States and Guam, State agencies are
required to make reasonable efforts to identify and locate a
child’s relative when out-of-home placement is needed.5 New
Hampshire, American Samoa, Guam, and the U.S. Virgin Islands
use statutory language such as “may consider” placement with
relatives. West Virginia and the Northern Mariana Islands do not
address the issue of the placement of children for foster care
with relatives in their statutes.
In all cases, before a child can be placed in the home of a
relative, the child-placing agency must do an assessment to
determine that the relative is “fit and willing” to provide asuitable placement for the child, able to ensure the child’s safety,
and able to meet the child’s needs. Approximately 28 States and
the District of Columbia require relatives to undergo a criminal
background check that may include all adult members of the
household.6 Placement Options
In 18 States, American Samoa, and the Virgin Islands, the court
may transfer legal custody of the child to the relative as an
alternative to a foster care placement.7 In the remaining States,
custody is given to the State social services department, and
the department then assumes responsibility for making an
appropriate placement for the child. In 19 States and the District
of Columbia, the relative providing out-of-home care must be
licensed or certified as a foster family home,8 although 10 of
these States allow temporary or provisional approval while the
relative works to complete the requirements for full licensure.9
In seven States, licensure is not required, but relative care
providers may elect to be certified.10 In four States, kin care
providers are not licensed.11
Financial Support
Relative caregivers who are licensed as foster care providers
receive the same foster care board payments as other licensed
foster care homes. Approximately 13 States have kinship care
or relative caregiver programs to provide relatives with benefits
and services to help them better care for a child placed in their
home.12 Services can include counseling, respite care, and
assistance with applying for any forms of public assistance for which the child is eligible, such as Medicaid. Benefits can include
monthly stipends for child care, clothing, transportation, and
other expenses and one-time payments to cover the purchase of
furniture and other items needed to accommodate the child.
The Fostering Connections to Success and Increasing Adoptions
Act of 2008 (P.L. 110-351) amended title IV-E State plan
provisions to require that State agencies make reasonable
efforts to place siblings removed from their home in the same
foster care, adoption, or guardianship placement or, if that is
not possible, facilitate visits or ongoing contacts for siblings that
cannot be placed together, unless it is contrary to the safety or
well-being of any of the siblings to do so.13 Approximately 35 States, the District of Columbia, and Guam
require child-placing agencies to make reasonable efforts to
place siblings in the same home when they are in need of outof-
home care except when there are documented reasons why a
joint placement would not be in the best interests of any of the
siblings.14 In 29 States and Puerto Rico, siblings who cannot be
placed together must be given opportunities for visits and/or
other contact or communication.15
In approximately 10 States, State agencies must give preference
to relatives when making adoptive placements for children in
their custody.16 However, in four States, if the child has been
placed in foster care with a nonrelative and has been living with
the same foster parent for significant period of time when he or she becomes available for adoption, the nonrelative foster
parent may be given first preference to adopt.17
In approximately 33 States, when a parent places the child
directly with a relative, the laws provide for a streamlined
adoption process, such as not requiring a preplacement
assessment or home study unless specifically ordered by the
court.18 In 14 States, the child must have resided with the relative
for a period of time or have established a significant relationship
with the relative in some other way.19 Approximately 23 States
require a criminal records check of the adopting relatives and
other adult household members.20
1 42 U.S.C. § 671(a)(19) (LexisNexis 2013). Placement refers to the
placing of a child in the home of an individual other than a parent or
guardian or in a facility other than a youth services center.
2 42 U.S.C. § 671(a)(29) (LexisNexis 2013), as amended by the Fostering Connections to
Success and Increasing Adoptions Act of 2008.
3 Minnesota, Missouri, Nebraska, New Mexico, North Carolina, Oklahoma, Oregon,
Utah, and Washington.
4 The word “approximately” is used to stress the fact that States frequently amend
their laws. This information is current only through July 2013. Alabama, Alaska, Arizona,
Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii,
Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan,
Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico,
New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island,
South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington,
and Wisconsin address preference for relative placements in their statutes.
5 Arkansas, California, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa,
Massachusetts, Minnesota, Missouri, Nevada, New Jersey, New York, Oregon,
Pennsylvania, and South Carolina.
6 Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Illinois,
Indiana, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi,
Montana, New Jersey, North Dakota, Ohio, Rhode Island, South Carolina, Tennessee,
Texas, Utah, Washington, and Wisconsin.
7 California, Colorado, Delaware, Iowa, Kansas, Kentucky, Nevada, New Hampshire, New
Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, South Dakota, Utah, Vermont,
Virginia, and Washington.
8 Alabama, Alaska, Arkansas, Connecticut, Hawaii, Louisiana, Maryland, Massachusetts,
Minnesota, Missouri, Montana, Nebraska (except for placements with grandparents), New
Jersey, New York, North Dakota, Rhode Island, South Carolina, Tennessee, and Wisconsin.
9 Arkansas, Connecticut, Maryland, Massachusetts, Minnesota, Montana, Nebraska, New
Jersey, North Dakota, and Rhode Island.
10 Arizona, Illinois, Indiana, Michigan, Nebraska (for placements with grandparents only),
Virginia, and Washington.
11 Florida, Kansas, Kentucky, and Texas.
12 Arizona, Colorado, Connecticut, Delaware, Florida, Georgia, Iowa, Mississippi, Nevada,
North Dakota, Ohio, Texas, and Wisconsin.
13 42 U.S.C. § 671(a)(31) (LexisNexis 2013).
14 Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Georgia,
Hawaii, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North
Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas,
Virginia, Washington, West Virginia, and Wisconsin.
15 Arizona, California, Connecticut, Florida, Georgia, Hawaii, Indiana, Iowa, Maine,
Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey,
New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South
Carolina, Texas, Utah, Virginia, Washington, and Wisconsin.
16 Arkansas, California, Illinois, Massachusetts, Minnesota, Nebraska, Ohio, Oregon,
Washington, and Wisconsin.17 California, Missouri, New York, and Tennessee.
18 Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois,
Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Mississippi,
Montana, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota,
Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont,
and Virginia.
19 Alabama, Alaska, California, Colorado, Delaware, Florida, Louisiana, Missouri, New
Hampshire, New Mexico, New York, North Dakota, Tennessee, and Virginia.
20 Arkansas, California, Colorado, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine,
Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New
Mexico, North Carolina, North Dakota, Ohio, Rhode Island, Texas, Utah, and Vermont.
For more information on the requirements for criminal background checks for foster and
adoptive parents, see Information Gateway’s Criminal Background Checks for Prospective
Foster and Adoptive Parents at
https://www.childwelfare.gov/systemwide/laws_policies/statutes/background.cfm.17 California, Missouri, New York, and Tennessee. 18 Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Mississippi, Montana, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, and Virginia. 19 Alabama, Alaska, California, Colorado, Delaware, Florida, Louisiana, Missouri, New Hampshire, New Mexico, New York, North Dakota, Tennessee, and Virginia. 20 Arkansas, California, Colorado, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Rhode Island, Texas, Utah, and Vermont. For more information on the requirements for criminal background checks for foster and adoptive parents, see Information Gateway’s Criminal Background Checks for Prospective Foster and Adoptive Parents at https://www.childwelfare.gov/systemwide/laws_policies/ statutes/background.cfm.


The purpose of Chapter 7 of the Children's Code Section 63-7-10 is to insure that any intervention by the state into family life on behalf of children be guided by law, by strong philosophical underpinnings and by sound professional standards for practice. Child welfare services MUST be based on these principles. It is the policy of South Carolina to reunite the child with his family in a timely manner. The children's code should be liberally construed to the end that families whose unity or well-being is threatened shall be assisted and protected and restored if possible. It is a balancing act that more often than not is not balanced at all. The recent use and misuse of hair follicle drug screens in my opinion is tipping the scales off balance resulting in children being separated from their parents far longer than need be. How can SCDSS use the hair follicle drug screen and all drug screens for that matter as an effective tool in meeting the goals set forth in section 63-7-10? The answer is for all the players in child welfare cases to be informed, educated and trained as to what the most effective purpose drug screens can serve in developing a parent's individualized treatment plan and how drug screens can serve as an evidentiary tool in court.
With that being said, the Defendant parents in child welfare cases are increasingly being subjected to taking hair follicle drug screens prior to any allegations of drug use being substantiated by DSS. The mere fact that anyone can anonymously call the DSS intake line and make a report of alleged drug use will trigger a DSS investigative worker to make contact with that family within 72 hours. The worker is now trained to request that parent to submit to a hair follicle drug screen despite no visible evidence of drug use or neglect within the home. DSS is charged under the code to do the least intrusive measure when intervening in a family's life, however, the practice of making parents submit to a hair follicle drug screens based on an allegation of drug use along with the veiled threat that if they do not comply, their child could be taken away.

Federal court in Texas declares Indian Child Welfare Act unconstitutional

In the recent case of Brackeen v. Zinke, Case 4:17-cv-00868-O, A Texas Federal Court in Forth Worth declared that the Indian Child Welfare Act categorizes children in the State's Welfare system by race, not membership or eligibility for membership in a tribe, and that these classifications based on a child's race gives illegal racial preferences. The Federal Court also struck down provisions of the Federal Law known as ICWA that allow Native American Indian Tribes the ability to intervene as a matter of right in CPS cases. Judge Reed O’Connor stated in his opinion “No matter how defendants characterize Indian tribes—whether as quasi-sovereigns or domestic dependent nations—the Constitution does not permit Indian tribes to exercise federal legislative or executive regulatory power over nontribal persons on nontribal land.” The basis of this opinion comes from a non Indian family that wished to adopt a minor child that was placed in their care after being removed by Texas CPS. The couple seeking adoption, along with the Texas Attorney General, brought this action in the Federal Court alleging that ICWA violates equal protection rights by imposing a race-based test for where a child with a Native background should be placed: first with extended family, then other members of the child’s own tribe, then other Native people, and, if none of those options are available, to any other fit placement. The Couple argued that the this standard violates the primary function of the Family Court which is to determine the best interest of the child of every child on a case by case basis.

Divorce on the Decline

According to recent reports, the divorce rate is beginning to dramatically decrease. What is causing the divorce rate to plummet? The date suggest that the answer is due to millennials, who are approaching relationships and marriage differently from baby boomers, Generation X. Apparently, millennials tend to be picker about who they marry. Other differences are that millennials tend to be more focused on their education, careers and finances and therefore are getting married at older ages. According to a study conducted by the University of Maryland, the divorce rate dropped 18% from 2008 to 2016.

The Divorce Defense of Recrimination

Another such defense to a fault-based divorce is the defense of recrimination. The defense of recrimination can be raised when one spouse accuses the other party of misconduct that the alleging spouse is also guilty of committing. There is a saying in the law that those who come to court asserting a claim must do so with “clean hands.” There is also another very common saying, that seems fitting to describe the defense of recrimination, that those who live in glass houses shouldn’t throw stones. But to illustrate the legal defense of recrimination, imagine a husband and wife that are both committing adultery, but neither spouse knows of the other’s misconduct. One day the husband finds out his wife is having an affair and files for a fault-based divorce on the grounds of adultery. The wife would be able to assert the defense of recrimination because the husband came to Court with “unclean hands.” One party can not allege the other spouse is guilty of marital misconduct when that spouse is engaged in the same behavior.

The Role of Mediators in Mediation

Mediation is often a very misunderstood process. Part of the reason possibly comes from the stigma that alternative dispute resolution is “mandatory” in South Carolina. While the rules require that parties physically attend a mediation session in order to get to a final hearing, there is nothing mandatory about making the parties settle their case or their differences.  During mediation, there is the possibly that the parties can resolve their difference on their own through some mutual understanding. Sometimes, people attend mediation as their last chance to reach a resolution that they can live with and still not give up all control of the outcome. Some people, either in divorce or custody cases, go through entire mediations without realizing that the mediator is not a Judge. Neither party needs to “win over” the mediator or convince them of the rightness of their position. This is because mediation is based on the doctrine of self-determination. That the parties are in the best possible position to solve their own problems.

But in order for parties to reach their own conclusions that they are better off solving their own problems, rather than punting the issue to be determined by a Judge, people often ask “what would a Judge do if we do go to a hearing.” Some feel that a good mediator is one that can likely determine what will happen if the parties go to a final hearing and adequately communicate that to the parties. Often, the mediator is needed to help one side, the other or both, that they are taking an unrealistic position and need to adjust their views on how a case should be settled.

A good mediator however is much, much more than a messenger that carries proposals back and forth. The mediator is in control of the mediation process. The mediator helps the parties understand the other’s position and even more importantly, how the other party came to that position. A mediator helps the parties explore opinions that might otherwise might not have been considered. It is in this way that the mediator helps the parties determine their own future.

Obtaining a Divorce in South Carolina

In order to obtain a divorce in South Carolina, the party seeking the divorce must first meet the residency requirement established by law. In order to file for divorce the person filing (plaintiff) must have resided in a period of at least one year prior to filing. If the Plaintiff is not a South Carolina resident then the Defendant must have resided in South Carolina for a year prior to filing. However, if both parties are residents of South Carolina, at the time the action is filed, then the Plaintiff need only reside in South Carolina 3 months prior to filing for divorce.
South Carolina has four fault-based grounds for Divorce:
1. Adultery
2. Desertion for a period of one year
3. Physical cruelty
4. Habitual drunkenness ( including narcotic drugs as well as alcohol)
There is also a fifth ground for divorce often called a no-fault divorce. This occurs when the husband and wife have lived separate and apart without cohabitation for a period of one year.

The Problems of Foster Care

As a long time advocate for children and as a former Attorney for the South Carolina Department of Social Services, it’s not an over exaggeration to say that no other recent court case has had as major an impact as the recent case of SCDSS v. Boulware. Opinion No. 27759, South Carolina Supreme Court, January 2018.
Prior to the Court’s decision in Boulware, Foster Parents had little rights in regards to the minor children that these foster parents raised. Although no situation is ever the same, in many instances, for children languishing in the foster care system, the Foster parents were the only parents many children every knew. Even in situations where biological parents might still perhaps occasionally visit with their children, these foster parents and children had come to form an extreme attachment and bonded in a way that children came to view these people called, foster parents, who in many instances may have raised a child or children since their birth as a parent. Not only is this the view point of many children, currently in foster care, but it is one shared by the foster parents as well. Over the months and years of providing foster care to a child, Foster parents, often come to see these children as their own. As this bond grows strong, it is only natural that Foster parents seek to adopt these children in foster care because, after all, after time these children are part of the family. Not only do foster parents see the children as their own children and the children see the parents as their parents, but the bonds between siblings grows ever strong as children remain in the foster home. The biologic children of these foster parents also bond with the children that eventually become considered another brother or sister.
While these bonds that develop are very real, very deep and intensely felt within the foster family, there is one major problem. There exist almost no legal bonds between a foster parent and foster child.
Prior to the Court’s decision in Boulware, the relationship between DSS, the Foster Parent(s) and minor child(ren) is predominantly seen as a contractual one. As the Court said in the case of SCDSS v. Youngblood “that the foster care relationship is a temporary and contractual relationship created by the State, and we further noted foster care is "a temporary living arrangement . . . utilized while permanent placement plans are being formulated for the involved children." 402 S.C. at 321– 22, 741 S.E.2d at 520 (quoting 10 S.C. Code Ann. Regs. 114-550(A)(1) (2012)). Accordingly, we held "the foster parent relationship, absent statutory law to the contrary, is insufficient to create a legally protected interest in a child and therefore, does not create standing to petition to adopt."
It is important to note that the Youngblood case did not preclude foster parents for petitioning for intervention in foster care cases. Section 63-9-60 of the children’s code is an extremely broad provision that state that “Any South Carolina resident may petition the court to adopt a child.” However, the law provides certain exceptions such as: The child is a special needs child; there has been public notoriety concerning the child or child’s family; the child is to be placed for adoption with a relative related biologically or by marriage; at least one of the adoptive parents is in the military service station in South Carolina; the child has been in foster care for at least six months after having been legally freed for adoption and no South Carolina resident can be identified for adoption. However, this sections does not apply to a child placed by the South Carolina Department of Social Services (SCDSS) or any agency under contract with the department for purpose of placing that child for adoption.
In the past, the ability for a foster parent to intervene was determined entirely by the Judge and whether or not the Court felt that it was in the best interest of the child(ren) to intervene in the action.
Prior to the opinion in Boulware, I have seen many motions by foster parents to intervene in actions. Sometimes they were granted and the foster parents were allowed to be involved in the court process and sometimes they were not. There are no real established criteria to explain why it happened one time and not another. The only thing I can ever think of to explain it is that sometimes the Court felt it was in the best interest of the child, sometimes the Court didn’t.
But prior to the Boulware opinion, foster parents could “intervene” in actions. This essentially meant that they were allowed to pull a seat up to the table. In any litigation, it is the Plaintiff that files the complaint or petition for action. The main goal of SCDSS is to attempt to reunify the biological parents and the children as soon as it is a possibility to safely do so. Even if contrary to the welfare of the child, SCDSS may not immediately seek to terminate parental right (TPR) of the biological parents. So even when Foster parents were allowed to pull up a seat to the table and got a say, they were still on DSS’s time frame. This could mean that the ability for a foster parent to adopt or even attempt to adopt a child could drag out for months or years.
Why is Boulware different and how is it different from everything else discussed? The previous cases held that a foster parent did not have standing to intervene when a child had been placed with a foster parent, pursuant to a contractual obligation, for the purpose of placing for adoption. So does Boulware give foster parents standing to intervene in court actions for termination of parental rights (TPR) or adoptions? No. This does not create a grant of standing or the right to intervene by foster parents. What Boulware means is that if a child has been placed in a foster home and that his placement “was not placement for the purpose of adoption” then the foster parent can file a private action for adoption.
The Court said “The issue in this case is not whether Petitioners signed a contract or whether the foster relationship creates standing. Likewise, whether a person who commences a private adoption action under the attendant circumstances is a current foster parent or a former foster parent is of no consequence to the issue of standing under section 63-9-60.” The only requirements to obtain standing to file a private termination of parental rights and adoption action is to be a South Carolina resident and that the child has not been placed for the purpose of adoption.

If you are a current or former foster parent or any individuals seeking to adopt a child or children that is currently in the custody of the Dept. of Social Services, contact the Burns Law Firm. Tyler Burns is a former attorney for SCDSS and may be able put his experience to work for you. Call now to schedule a consultation.