SOUTH CAROLINA FAMILY COURT TEMPORARY HEARING: OUTLINE OF PROCEDURE, GOALS, PREPARATION, AND ATTENDANCE
South Carolina Family Court Temporary Hearing: Outline of procedure, goals, preparation, and attendance
Speed is important. The Supreme Court of South Carolina directed Family Court Judges, parties, and attorneys to expeditiously move cases to conclusion within 365 days of filing. From a public policy perspective, families need their disputes resolved. This directive is contained in Administrative Order, 2014-08-27-01. To emphasize this point cases not concluded within 365 days, or scheduled for final hearing during that period are dismissed with few exceptions.
The Temporary Hearing provides an opportunity for the court to provide you things you want – temporarily – until a final ruling occurs by agreement, or by a trial. In the temporary hearing issues of temporary custody, child support, temporary alimony, possession of property, restraining orders, allocation of debt, appointment of Guardian ad litem, appointment of mediators, apportionment of attorney fees and scheduling for discovery are addressed. All cases obviously do not contain every issue. For example, your case may not involve debt, another case may not involve children, etc.
At a temporary hearing your attorney should strive to obtain a result that provides the relief you are entitled to receive, and desire to receive. To obtain these results most attorneys seek to negotiate a settlement meeting your goals. If the other side is unwilling to concede, your will present affidavits, exhibits, a proposed parenting plan, and a temporary hearing background information sheet at the temporary hearing to convince the judge to grant your wishes. The hearing is conducted pursuant to Rule 21 of the South Carolina Family Court Rules, and Order, 2012-11-21-04, S.C. Supreme Court.
Your attorney will require your assistance obtaining affidavits that support your position. Affidavits are written statements of witnesses signed, and sworn as truth in the physical presence of a notary public. In addition to affidavits, you may present exhibits to your affidavit that confirm facts or substantiate your position. Photographs, medical records, billing statements, bank statements, school records, screen shots of social media posts, screen shots of text messages, and emails are examples of exhibits regularly presented in Temporary Hearings.
Please consider providing affidavits and Exhibits as soon as possible to your attorney. Waiting until the day of the temporary hearing limits he ability to effectively prepare the written packet for the hearing, and prepare for oral argument that will be delivered during the hearing. While your attorney will present oral argument, you will not likely be required to deliver any live testimony. On very rare occasions Judges ask parties questions during the hearing. If the Judge asks you a question you will be required to answer the question truthfully. If you are asked any questions, your attorney will likely discuss the question and answer with you privately if required.
In addition to affidavits, and Exhibits, you must complete a financial declaration. You you may obtain a digital copy from my website (Financial Declaration). Please provide the latest pay stub from your employer, and if possible, the last pay stub from the last three calendar years. The last paystub from each calendar year will provide a clear picture of any overtime earned for the calendar year.
Financial declarations are the “downfall” of many family court cases. Lying about income, omitting assets, omitting bank account, inflating expenses, or failing to include loans, bills, etc, allow judges a reason to question your integrity, and the truth of other statement you make. Be truthful. Be complete. Be thorough.
Pointers for attending the hearing:
(WSJ Article on point)
♦ The day before and the day of your hearing should be free of alcohol. I repeat, the day before and the day of your hearing should be free of alcohol
♦ No shorts, no flip flops, no tank tops, no tee shirts or jackets with references to drugs, alcohol, politics, or attempts at humor
♦ Remove any piercings that can be removed, cover tattoos, avoid excessive perfumes or colognes
♦ Ladies: modest clothing that covers as much skin as possible, low to no heels, modest makeup and jewelry,
♦ Gentleman: dress pants, sport coat, and belt preferred; no unnecessary jewelry
♦ Leave your mobile phone, notebook computers, drinks, food, pocket knives, weapons, mace, cigarettes and any unnecessary personal items in your car. You will be searched as you enter the court house. These items will not be allowed in the courthouse.
When the case is called, (1) each attorney will exchange copies of documents to be provided to the court, (2) each will provide documents to the court, (3) each attorney will have an opportunity to give a brief summary of the case, (4) the judge will review the submissions of each attorney, and (5) the judge will either make a decision or take the matter under advisement and provide a decision on a later date. During the hearing silence and limited expression is required. Unsolicited comments, hand motions, gasps, etc, will negatively impact your case, and can result in action by the court against you.
I have provided the actual text below the court rules for Temporary Hearings, and Financial Declarations. They also include a hyperlink to the Family Court Rule Book.
(a) Motion for Temporary Relief. A written motion for temporary relief, and notice of the hearing thereof, shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by order of the court. In an emergency situation, such order may be made on ex parte application.
(b) Evidence at Hearing. Evidence received by the court at temporary hearings shall be confined to pleadings, affidavits, and financial declarations unless good cause is shown to the court why additional evidence or testimony may be necessary.
(c) Service of Affidavits. Notwithstanding the provisions of Rule 6(d), SCRCP, affidavits filed at a temporary hearing need not be served on the opposing party prior to the temporary hearing.
(a) When Required. In any domestic relations action in which the financial condition of a party is relevant or is an issue to be considered by the court, a current financial declaration in the form prescribed by the Supreme Court shall be served and filed by all parties.
(b) Filing and Service. Financial declarations shall be filed and served prior to or at the first hearing, or no later than 45 days after the complaint is served, whichever occurs first.
(c) Effect of Default. If the defendant fails to timely answer or otherwise plead, the plaintiff shall not be required to serve a financial declaration on the defendant prior to the final hearing.
(d) Sanctions. Reasonable sanctions may be imposed upon an attorney or a party for willful noncompliance with this rule.