Discovery in Family Court

Before May 1, 2017, parties involved in family court litigation had to ask the court for the ability to engage in discovery. On that date an order went into effect that amended the previous version of the rule that governs discovery in family court litigation: Rule 25, SCRFC. Since that date, husbands and wives, moms and dads, and all other litigants in the family courts of this State are “allowed to engage in formal depositions and discovery according to the South Carolina Rules of Civil Procedure.

For more than 2 years litigants have been able to engage in discovery as soon as the action has commenced. In spite of that, I still see lawyers waiting until after the temporary hearing to send out discovery requests. Some lawyers will include a request for discovery in their client’s pleading, or in the motion for temporary relief. A decade ago, it was common practice to include a request for discovery in a party’s motion for temporary relief, but there is no need for that any longer — it’s automatically provided once the litigation begins. There was no reason to request discovery in the pleadings before May 1, 2017, nor is there any reason to do it now.

The tools of discovery are a necessity in properly building your presentation, or your client’s presentation to the family court at trial. Whenever I hear the other side of a case complain about the discovery requests that my client submitted to them, my interest is piqued, particularly when the bulk of the requests are tailored around financial matters. The amendment of Rule 25, SCRFC was a refreshing change; a change that probably should have occurred a decade or two earlier. Regardless, it was progress, and progress is a good thing. I’m hopeful that by May 1, 2027 I won’t see lawyers still requesting the right to engage in discovery in pleadings or their client’s motion for temporary relief, but it won’t surprise me if I do.

Mediation Annoyed Me In The Past

When I was in law school, mediation was part of a required course: Alternative Dispute Resolution. Almost immediately, I didn’t care for it. I looked at mediation as the antithesis of being a lawyer. I could not understand (then) how everything else that law school had to throw at me could be reconciled with the mediation process; a neutral facilitated negotiation.

Mediation is now a mandatory process for all contested issues raised in family court litigation. There are, of course, certain exceptions to this general rule, but they are few and nearly all private actions in the family courts must be submitted to mediation before the litigants can present their case for trial. The family court system is also now following a 365-day rule, which requires all cases filed in the family courts to meet particular benchmarks within one year of the filing of the summons and complaint. If those benchmarks are not met, for whatever reason, then the case will be administratively dismissed.

Participation in mediation is one of those benchmarks. Before either side of the litigation may request a final hearing, there has to be a certificate of exemption from the mediation process in the court’s file, if an exemption applies. Alternatively, and more commonly, there must be a mediator’s report declaring that the mediation process was attempted. If the mediation was unsuccessful, then the parties may proceed towards a trial of their issues.

I, like many other practicing family law attorneys, participate in the mediation process as the attorney representing a party, and also as the neutral, assisting other parties to reach a resolution of their issues. I now have a deep appreciation for this process. As the attorney representing a party at the mediation, there is the opportunity to learn from the offers that are made or the arguments that the mediator is permitted to present during the mediation where the opposing side of the case believes are their greatest strengths, or my client’s greatest weaknesses. They are certainly not putting their cards on the table, but their cards are showing. That information is incredibly beneficial to the client, and will be put to use if the mediation is not successful in further preparing for trial.

With age comes wisdom, but sometimes age comes alone.
— Oscar Wilde

As the mediator, though, you are given a real opportunity to help litigants resolve their issues and get their case settled. This is, for me, never more rewarding than when I am able to help parents put aside their animosity for one another and reach a compromise. Parties that have a good understanding of the opportunity that mediation provides, and the potential risks they can avoid by reaching a settlement rather than allowing a judge to make the decisions entirely for them, depends, in large part, on the legal advice they are receiving from their attorney.

My opinion of mediation has changed entirely since law school. I hope that if a current family court litigant reads this and has not yet participated in mediation, they will really consider the opportunity they are being given to resolve issues rather than perpetuate conflict. For the attorneys that are headed into mediation with their clients, use everything that you are given in that process to further prepare your client’s case for trial. There is always something beneficial to my client’s case that I learn from the other side, and which I certainly did not know before the mediation started.

The Ambush of Temporary Hearings

The first hearing in family court litigation is typically the temporary hearing. Rule 21, of the South Carolina Rules of Family Court (SCRFC) governs temporary hearings, and the evidence that the family court judge is confined to reviewing during these hearings. Rule 21(b), SCRFC, provides that the judge presiding over the temporary hearing may receive additional evidence or even testimony at the temporary if “good cause is shown to the court why additional evidence or testimony may be necessary.”

The temporary hearing is docketed based upon a motion filed by one side or the other seeking “temporary relief”, which is quite often not identified, or the motion makes reference to the pleading filed by the moving party to direct the reader elsewhere to ascertain the relief or order sought by the moving party. The parties may provide affidavits at the temporary hearing, but the number of pages of affidavits are confined to 8 pages, unless the hearing is docketed for 30 minutes due to being deemed complex. (See Order, filed November 21, 2012). The page limit does not include any attachments to the affidavit, or exhibits “offered only as verification of information contained in the affidavits.”

There is no requirement that the affidavits for a temporary hearing be served on either side prior to the commencement of the hearing. Simply put, husband and wife, mother and father, the litigants on both sides of the litigation will have no clear picture of the allegations that are going to be presented against them prior to the affidavits being handed to their attorney at the beginning of the hearing. The presiding judge for the temporary hearing will be receiving the affidavits at that time, as well.

The element of surprise that accompanies temporary hearings in the family courts is difficult to explain to clients sometimes. The difficulty is not in explaining the procedures for the hearing to the client. The difficulty is in explaining why such significant issues in that individual’s life and the underlying litigation are going to be decided based upon such a cursory examination of the details surrounding that person’s life, or false allegations being presented by the other side. I am not a fan of surprises, and temporary hearings are filled with them.