SCRCP

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.