Orders of Protection for Minors Approved by the Court of Appeals – But not Domestic Violence Charges for Child Victims

In Taylor v. Taylor, the SC Court of Appeals approved orders of protection for minors, although SC Code § 20-4-20 excludes minors from the definition of “household member.”

Family courts are authorized to issue orders of protection for minors who need protection when they live in the same household as an abusive household member and a petitioner who is requesting the order on the minor’s behalf.

Below, we will discuss the statutory definition of “household member,” including:

• Orders of protection for minors,
• How the Court of Appeals arrived at its decision, and
• Why the Court’s reasoning does not apply to domestic violence charges.

Orders of Protection for Minors Approved by the Court of Appeals: Taylor v. Taylor

Although the legislature’s definition of “household member” in the SC Protection from Domestic Abuse Act does not include minors, the Court of Appeals fixed it for them.

Other provisions in the Act refer to minor household members; therefore, the legislature must have forgotten to include minors in their definition. So, the Court of Appeals added it for them…

The Definition of “Household Member” Does not Include Minors

The SC Protection from Domestic Abuse Act authorizes the family court to issue orders of protection for household members who allege abuse, but minors are not included in the definition of “household member.”

SC Code § 20-4-20(2)(b) defines household member as:

1. A spouse,
2. A former spouse,
3. Persons who have a child in common, or
4. A male and female who are cohabiting or formerly have cohabited.

There’s no plausible way to stretch this definition to include orders of protection for minors, but the Court of Appeals looked to other code sections that refer to “minor household members” to reach their conclusion.

Other Code Sections Refer to “Minor Household Members”

How does the Court of Appeals add to the legislature’s definition of “household member?” They looked at other code sections in the same Act and determined that the legislature must have intended to include minors in their definition.

For example, SC Code § 20-4-40(a) says “[a] petition for relief under this section may be made by any household members in need of protection or by any household members on behalf of minor household members.”

SC Code § 20-4-60(A)(1) says an order of protection may “temporarily enjoin[] the respondent from abusing, threatening to abuse, or molesting the petitioner or the person or persons on whose behalf the petition was filed.”

The plain language of the Act’s definition of “household member” does not include minor children, but the Court of Appeals found that the legislature must have intended to include minors (despite several revisions of the statute where they again excluded minors from the definition) because they reference minors in sections 20-4-40 and 20-4-60 of the Act.

There.

They fixed it for the legislature…

“Minor Household Members” are not Included in the Domestic Violence Act

Family courts can issue orders of protection for minors, but does this also apply to domestic violence charges?

A father can apply for an order of protection on behalf of their minor child, but can the mother be charged with domestic violence for assaulting the child?

No…

The crime of domestic violence is found in a separate section of the SC Code (see, SC Code § 16-25-10). The term “household member” for purposes of domestic violence charges has the same definition as “household member” for purposes of protection orders, but there is no additional language in South Carolina’s domestic violence law that would imply the legislature intended for minors to be included in the definition.

Other criminal charges apply to minor children, however, and, once a person is charged criminally, their bond conditions will include the equivalent of an order of protection for the minor.

Other Criminal Charges Do Apply to Minor Household Members

When a parent (or anyone) abuses a child, they can be charged with a range of criminal offenses depending on the severity of the allegations, including:

• Cruelty to children – SC Code § 63-5-80 carries up to 30 days in jail,
• Child neglect – SC Code § 63-5-70 carries up to ten years in prison,
• Assault and battery – SC Code § 16-3-600 carries up to 20 years depending on the severity, or
• CSC with a minor – SC Code § 16-3-655 carries up to life in prison (or death, although the death penalty’s constitutionality in this context is questionable) depending on the severity.

Bond Conditions Include No Contact Provisions Equivalent to Orders of Protection for Minors

When a person is charged with a crime, a “no contact order” is a standard bond condition, which is the functional equivalent of an order of protection for minors when the minor is the alleged victim in the case.

A no-contact order prevents all contact with the alleged victim, physical or electronic. If the defendant violates the bond conditions, their bond can be revoked, and they may be subject to additional charges.

Got Axelrod?

If you or your children are in danger and you believe an Order of Protection may help, talk to your Myrtle Beach divorce attorney on the Axelrod team as soon as possible. We can help you to secure the safety of yourself or your children by requesting an emergency hearing and an Order of Protection from the family court.

Call now at 843-258-4079 or get in touch through our website to talk with a SC divorce attorney today.