Temporary Hearings in SC Family Court
Strategies for Temporary Hearings
By M. J. Goodwin
On November 21, 2012, the South Carolina Supreme issued an Order (herein after “Order” or “the Order”) that drastically changed the way that temporary hearings are handled in South Carolina. Before this Order, it was commonplace in many counties for litigants to hand in fifty or more pages in affidavits and supporting documents. Clearly, such a volume of material cannot be read and considered by the Court in the confines of a temporary hearing. This Order provides for a uniform practice throughout the state.
The Order provides for two possible tracks for Temporary Hearings. If a matter is designated as routine (and thus not being “complex”), the following rules now apply:
*the hearing shall be set within four (4) weeks of the filing of the motion
*service of the motion shall be made “as expeditiously as possible”
*the name of opposing counsel, if known, must be listed on the motion
*the moving attorney must list his or her conflict dates and times
*the Clerk of Court will coordinate scheduling with all attorneys known to be involved in the case
*attorneys representing parties at the Temporary Hearing are encouraged to consult with one another prior to the hearing to attempt to resolve issues on a temporary basis
*all temporary hearings are allotted 15 minutes
*each party is limited to eight (8) pages of affidavits, exclusive of the Background Information Form, proposed parenting plans, financial declarations, attorney’s fees affidavits and attachments/exhibits offered only as verification of the information contained in the affidavits.
*each party SHALL submit a financial declaration, Background Information Form and proposed parenting plan. Failure to submit the financial declaration may result in sanctions.
So what does this mean for the practitioner in a contested child custody case? There are some strategies that can be employed to maximize the attorney’s effectiveness within the confines of these rules.
- Use the Background Information Form fully. Do not waste precious affidavit space on facts that will go on the Background Information Form. This is the information that previously took the first one to two paragraphs of the affidavit: date of marriage, date of separation, names and ages of children, incomes, who carries health insurance, etc.
- Use the attachments that verify information contained in the affidavits fully. For example, if one of the attachments is an incriminating letter that the client found, reference it in the affidavit, briefly, and attach it. Don’t restate its contents in the affidavit. If the opposing party has had a child in the presence of a paramour and there is a PI report, reference that fact in the affidavit and attach the PI report.
- Dive right into the meat of the issue in your affidavit. Don’t waste space. Use fewer, stronger words. Instead of: “Your plaintiff would show and allege that is in the best interest of the minor children to be in the custody of the plaintiff due to the plaintiff’s more stable lifestyle and home.” Try: “I should have custody of my children because I am the more stable parent.” Avoid having the client draft their own affidavits or having hand written affidavits. Writing skills have never been more important. It is crucial to know what the goal of the affidavit is. It is crucial to identify the best, most effective, concise way of stating the goal and evidence to support it.
- Use the new joint custody statute, which also provides some factors to consider in determining the “best interest” of the child, as a guideline for what to address in the affidavit. These factors are found in SC Code Section 63-15-240.
- Be very selective about who gives an affidavit. Teachers, coaches, clergy, and neighbors seem preferable to friends and relatives who may be biased.
- If there is a Guardian ad Litem involved, make every effort to get a written report, even if is brief, prepared for the hearing. There is no limit on the number of pages that the GAL may submit.
- Use the Parenting Plan to address issues that are important to the client. Parenting plans can be very short (as suggested by the Supreme Court form) or very detailed (as suggested by the sample drafted by retired Family Court Judge Barry Knobel). There is no page limit on the parenting plan.
- If possible and practical, engage in mediation before the temporary hearing. Start thinking final resolution at the beginning of the case, rather than adopting a “wait and see what the judge does” strategy. This approach will best suit the client’s life and allow the client to move forward, which should be the attorney’s ultimate goal.
Parties wishing to extend the hearing time from fifteen to thirty minutes are not bound by the eight page rule limit. This additional time must be requested from the Clerk of Court. No guidelines are provided as to how the determination should be made as to whether or not the case will get a thirty minute hearing. It appears from the Order that the Clerk must grant this extra time if it is requested.
Additionally, either party may seek to have the matter deemed “complex” by the Chief Administrative Judge and in such case, the Judge will determine the “appropriate time to consider the issues.” Again, no guidelines are provided as to what constitutes a “complex” matter.
Caveats and potential problems:
- Pro Se parties will likely run afoul of these rules and continue to cause the same issues that they have always caused.
- Some matters may attempt to be deemed “complex” and fail. It is my suspicion that being deemed “complex” may prove as difficult as getting an “ex parte” order is. Being deemed “complex” may cause difficulties with scheduling.
- Scheduling hearings in four weeks or less (sometimes less than two in Anderson County at present) can present problems with effecting timely service. Process servers must be educated on proper service times. Otherwise, continuances will result.
The information above was presented by M. J. Goodwin at Continuing Legal Education Seminar for attorneys in 2013. The rules have remained the same since that time. Preparation for Temporary Hearings is crucial to a good outcome in Family Court.
You can reach me by email at firstname.lastname@example.org if you need assistance with a Family Court matter.