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 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.

The Importance of Cooperation for Parents

A lot of times good people figure out at some point that they just do not work well together as a couple. That is not a negative mark on either one of them. They are simply incompatible with one another. A lot of times, too, this realization does not occur to either one of them until after they have started a family and are parents. The hard truth that your marriage is not working and that a divorce is imminent can create a range of emotions for anyone going through that phase of their life. Too often, though, it can cause otherwise good people to make poor decisions.

When parents are involved in litigation over their children (i.e., custody and visitation), that can sometimes bring out the worst side of people. Parents should never use their children as a means of “getting back at” their former lover or soon to be former spouse. Parents should never pit their children against the other parent, or speak negatively about the other parent to their children. These points should go without saying, but it happens frequently enough in the family courts here in South Carolina that it has to be stated.

If two litigants step into the trial of their litigation and either one of them has conducted themselves in the manner described above, then the odds are against that parent being awarded custody. If the other parent maintained a proper level of communication with the other parent throughout the litigation, and was cooperative with them in matters involving the children, then odds just got a lot worse for the other parent. Promoting the other parent’s role to the children, and continuing to support their relationship with the children is only going to help both parents (in the long run), their children (both presently and in the long run), and the litigant (the parent promoting and supporting) in presenting their case for custody at a trial in the family court.