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Under South Carolina law in order to be convicted of CDV the defendant and alleged victim must have a significant connection that the law calls household member status. In cases where the alleged victim and defenant have never been married and do not live together the State may attempt to justify a
CDV charge on the premise that they have children in common.
If the State's case is based on paternity it can create an opportunity for the defendant to challenge the CDV charge. CDV and other criminal courts in South Carolina generally do not have the necessary legal jurisdiction to make any findings regarding paternity. This is because determination of paternity is a special type of legal finding mainly reserved for the Family Court or sometimes Probate Court.
This issue can easily be waived by a defendant who stipulates or agrees with the State's assertion of paternity, or who fails to make the appropriate objection. If the issue is waived then the defendant is essentially giving the State a free pass at proving this required element of the CDV offense.
Our CDV or criminal courts can take legal notice of a previous finding of paternity made by the Family or Probate Court. Generally though this would require the police or prosecutor to obtain certified true copies of the final orders finding paternity in those Courts - and then introduce that as evidence in the CDV trial.
Effectively challenging the assertion of paternity can lead to the ultimate granting of a motion to dismiss the CDV charge by the Court. In many instances there will not be any other criminal charge that can be brought by the prosecution due to the Constitutional protections against double jeporady.
Creative thinking, such as objecting to paternity, is an important part of challenging a CDV case and one of the benefits of retaining a lawyer for your case. If you beleive that the Law Office of James R. Snel, Jr., LLC, may be able to assist you or your loved one with their domestic violence or other criminal charge you are welcome to contact us at
1-888-301-6004. Initial appointments in our Lexington office are available at no cost.