Family Court Case Study: Part 3

Nicolas Knight

This is the third part of our investigative report on how Family Courts violate basic Civil Rights and circumvent the Law.

In this part of the series, we will be looking at the Final Hearing stage of the process.  This is usually where the attorneys get to play their games and the Judge goes along with it.  At the call of each case the Judge usually asks each party if there is anything that the Court can do to prevent the Divorce.  This in itself is a violation of the State Statues.  South Carolina has a statute that instructs the Courts to do all they can to prevent a divorce from happening if one party seeks reconciliation.  This process should be done at the beginning of each case and not at the end of a case after the attorneys have been able to wedge the couple further apart.

Another interesting fact here is that the State Legislatures’ public policy relating to marriage is to foster and protect it, to make it a permanent and public institution, to encourage the parties to live together, and to prevent separation.  This is found in case law Brown v. Brown (S.C. 1963) 243 S.C. 383, 134 S.E.2d 222 and State Statue [Code 1962 § 20-110].

A divorce decree would be reversed, where the trial judge made no attempt to reconcile the parties and failed to conduct a reconciliation hearing, as required by § 20-3-90.  The error of the trial judge in failing to comply with this section [Code 1962 § 20-110] is sufficient grounds for the reversal of the decree.

We added the above here so there is some understanding as to what the Courts are required to do in all Divorce Cases, and fail to do.

Unlike a Criminal Trial a final hearing in Family Court is held without a Jury, this violates Constitutional protections, as an individual is afforded a Jury of peers.  In the State of Texas one can request a Jury Trial for Divorce.  The Divorce rate in Texas is 2.2 per 1000 and in South Carolina it is 6 per 1000. Texas at this time is the only state within the U.S. that allows this protection.

For the purpose of this case study we will be going with the most used in Family Court: Physical Cruelty.

Final hearings in Family Court are based on evidence, but the Courts still apply the preponderance rule.  At this time the Court will dispense with any pre-trial motions such as continuance or motion to dismiss.  Once this is taken care of the Court will call the case to order and the complaining party begins.

Witnesses are called to testify to their knowledge of the abuse.  Here again the majority of the witnesses called are allowed to testify to hearsay statements, meaning they are allowed to give second-hand knowledge.  For example a witness can testify that they were told about the abuse by the complaining party even though they never witnessed any abuse themselves.  This would include the witness seeing bruises on the plaintiff even though they did not see the incident that led to the bruising.  Or the witness making statements such as they can tell the plaintiff was fearful.  This allows for testimony that paints a particular picture of the Defending Spouse in the Court’s eyes.  A very good question defending attorneys ask in these particulars is, “If the abuse was so prevalent and cruel why did it never get reported to law enforcement and why was their client never arrested for these allegations.”

It is common practice even though Court Officers and Judges are mandated reporters, that they never report these allegations to actual Law Enforcement for investigation.  This can be attributed to the fact that Family Court uses the lowest judicial standards.  If a case were to be found not valid by Law Enforcement, who are trained to make these factual determinations, it could present an issue on the case to continue.  Thereby attorneys and courts not receiving the monetary benefit of dragging cases out.

In one such case in Kershaw County we know that the trial judge Monet Pincus refused to allow psychological evaluations in, even though they are allowed under the Court Rules.  It would seem these evaluations were dis-allowed due to the following reasons, the Judge and Plaintiff attorney were friends and that the evaluations made the complaining party seem un-credible.  The evaluations which were conducted by Dr. Marc Harari stated that the complaining wife ranked high as a potential child abuser, drug abuser and very deceptive.  While the husbands merely stated he could do with some parenting classes due that he treats their children like friends.

In this same case the wife stayed with the husband after hiring an attorney and filing for separate support and maintenance for nearly 10 days afterwards, which included the couple continuing having martial sex, and under South Carolina statue would constitute what is called Condonation.  The wife testified to the sex while under cross examination by the defendant.

“Condonation,” as defense in divorce actions, means forgiveness, expressed or implied, by one spouse for breach of marital duty by the other; more specifically, it is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated and the offender shall thereafter treat the forgiving party with conjugal kindness.  Nemeth v. Nemeth (S.C. App. 1997) 325 S.C. 480, 481 S.E.2d 181.

The judge ignored all the factual evidence that was presented to the court and granted a divorce on the grounds of physical cruelty, giving the wife sole custody of the couple’s children.  The father had also the primary caregiver to the children.

Even the Guardian ad Litem failed in her duties as she never submitted a final report and only submitted a preliminary report, nor did she even ask about the children’s wishes.

What we see is that the Family Court Judges make up their own rules as they see fit.  In several other cases we have seen Judges ignore statues and court rules only to side with one party.  Judges such as Monet Pincus have objected to questions asked of witnesses when they are bound by neutrality, but often act in the interest of one side.

It is obvious that the Family Court system is broken.  Not just in its practice but in it’s practitioners.  Lawyers such as Kathryn Free and others, whom we have been told by several individuals practice dirty law and are not above breaking the law to win.

This court is to uphold one of the most valuable standards in our Court Systems “The Best Interest of the Child”, and yet fails on multiple accounts.  It is known by very few individuals that the Children are considered property in this Court and have no rights.

Good parents are labeled “deadbeats” or “abusers” simply for the fact of fighting for their children.  Over the past 10 years several grassroots organizations have sprung up demanding reform in the Family Court system.  One can Google all the online demands for State Legislators to reform this broken system and begin to hold accountable the practitioners of Family Courts for the violations of Constitutional protections and Civil Rights.

In the final part of this series we will take a look at the results of this broken system and how parents as well as children have suffered.

 

 

 

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