JEAN HOEFER TOAL
1231 GERVAIS STREET
|TO:||Family Court Judges & Magistrate Court Judges
Jean Hoefer Toal
Mutual Orders of Protection
May 16, 2012
It has recently come to my attention that the practice of issuing Mutual Orders of Protection based on the consent of the parties, and without findings of abuse, may be occurring frequently in courtrooms across our State.
In South Carolina, both the family and magistrate courts have jurisdiction to issue Orders of Protection, civil remedies to provide relief and protection to victims of abuse by household members. (S.C. Code Ann. § 20-4-10). The Protection from Domestic Abuse Act specifies that a petition for relief must allege the existence of abuse to a household member, as well as state the specific time, place, details of the abuse, and other facts and circumstances upon which relief is sought and must be verified. (S.C. Code Ann. § 20-4-10). The Act also specifies that no mutual order may be granted "unless the court sets forth findings of fact necessitating the mutual order or unless both parties consent to a mutual order." (S.C. Code Ann. § 20-4-60(E)).
All 50 states have laws governing the issuance of Mutual Orders of Protection (Mutual Orders). However, only seven, including South Carolina, permit Mutual Orders without a separate petition. Notably, in the six other states that do not require a petition, all require additional safeguards, such as an evidentiary hearing, to protect the Petitioner. The majority of other jurisdictions also require certain evidentiary findings prior to issuance of a protective order.
When a Mutual Order is being considered, the petitioner also becomes a respondent, and therefore is entitled to the same due process as is the respondent in the case. Both the Federal and South Carolina Constitutions prohibit state action that would deprive any person of life, liberty, or property without due process of law. The central tenet of due process is that each person who may be deprived of life, liberty, or property by an act of the state has a right to a fair procedure for the consideration of his or her interests prior to any such act. Therefore due process would require both notice and an opportunity to be heard.
Issuance of a Mutual Order without considering whether both parties are, in fact, entitled to such relief, may have the unintended consequence of placing victims in further danger. Domestic abuse is, in part, a pattern of dominating and coercive behavior and tactics. I have been advised that Mutual Orders can be used by the abuser as a tool in furtherance of the abuse and intimidation of the victim. Once the order is issued, the abuser may threaten to file charges against the victim for violating the order, use the issuance of a Mutual Order against the victim in custody or divorce proceedings. I am informed that at times victims have been coerced into non-compliance with the order only to have the abuser summon police for intervention and urge the arrest of the victim, as Mutual Orders are often difficult for law enforcement to interpret and enforce.
When asked by a judge to consent to such an order, the victim may lack a full awareness of the potential consequences of being bound by an Order of Protection and may consent out of fear of the abuser or a lack of understanding that she or he has a right not to agree. By consenting to a Mutual Order, the Petitioner may inadvertently create negative consequences for themselves relating to employment and housing. Furthermore, the Petitioner, who is in need of protection for themselves as well as their children, loses the privilege of possessing firearms or ammunition under the federal laws. 18 U.S.C. 922(g).
The Federal Law has recognized the manner in which a Mutual Order may be used to continue the cycle of abuse. For this reason, Federal Law prohibits the enforcement of a foreign Mutual Order of protection against the petitioner unless the respondent filed written pleadings seeking the order against the petitioner and the court issuing the order made specific findings of fact in favor of the respondent against the petitioner. 18 USC 2265. Likewise, South Carolina law requires a petitioner be afforded the same due process protection prior to enforcing a foreign Mutual Order of Protection against the petitioner. SC Code of Laws, §20-4-330(G). Therefore, it appears that the best practice to ensure protection of the petitioner's due process rights is to require that these two criteria are met prior to the issuance of a Mutual Order so that the terms of the order may be enforced throughout the United States.
I am, therefore, encouraging the courts to only issue Mutual Orders after the proper motion has been made by the respondent and upon specific findings of fact concerning the abuse and need for protection. In order to assist other states as well as law enforcement in the enforcement of these orders, the written order of the court should contain information regarding the respondent's motion as well as the court's findings of fact. Requiring a counter-petition or motion as well as specific findings of fact will help to ensure that this remedy is being utilized for its intended purpose, to protect individuals from domestic abuse.
Due to the potential harm and danger caused to petitioners by the issuance of Mutual Orders of Protection, it is imperative that the decision to issue a Mutual Order be a thoughtful and informed one.