Does procedural due process mandate testimony at family court temporary hearings in South Carolina?

Our Supreme Court is confused and conflicted on testimony at family court temporary hearings.  Rule 21(b), SCRFC (a rule promulgated by the Supreme Court) states, “ [e]vidence 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.”  This rule would appear to make testimony at temporary hearings the exception. Yet as the Supreme Court frequently notes, “[p]rocedural due process requires (1) adequate notice; (2) adequate opportunity for a hearing; (3) the right to introduce evidence; and (4) the right to confront and cross-examine witnesses.” Moore v. Moore, 376. S.C. 467, 657 S.E.2d. 743 (2008).  How can due process require the right to confront and cross-examine witnesses while the family court rules severely limit that right?

The answer is that family law attorneys in South Carolina fail to complain about this discrepancy.  However this failure creates serious risks of injustice.  Temporary decisions about child custody, child and spousal support, and possession of the marital home are being decided in a battle of one-sided affidavits, with no ability to confront and cross-examine hostile witnesses.  Certain poorly decided temporary orders are subject to being remedied at trial (I would define a poorly decided temporary order as one that, had the court known and properly weighed all the relevant facts at the time of the temporary hearing that were capable of being known at that time, it would have made a significantly different ruling).  However a temporary support award that leaves one party in penury, a temporary custody award that fails to protect the child or badly damages a child’s relationship with one or both parents, or a temporary order inappropriately evicting a spouse from his or her home, are injustices that can never be adequately remedied.

Given these risks, I have started requesting testimony at certain temporary hearings.  In my own mind, I have a two-part test I utilize before deciding whether to request testimony at a temporary hearing.  First, the motion needs to involve relief in which a poorly decided order cannot be adequately remedied at trial (custody motions always meet this test; support motions frequently do).  Second, the credibility of either party or adverse witnesses is a necessary consideration in justly resolving the dispute.  If a motion doesn’t meet the first test, “justice” can wait for the final hearing.  If a motion doesn’t meet the second test, testimony isn’t necessary to resolve the issues.  However, when both these tests are met, I am almost uniformly seeking testimony.

Today [August 27, 2009] I had my first “testimonial” temporary hearing in over fifteen years of family law practice.  It was my first attempt to see how these ideas would actually play out in front of a judge (I have filed returns in four motions I will be defending in the next two months in which I request the right to cross-examine the moving party).

The circumstances leading up to today’s hearing troubled me.  I was appointed guardian ad litem for three children in a custody modification case.  Both parties made allegations against the other that, if true, would be troubling to a family court judge required to decide the children’s temporary custody.  My investigation uncovered evidence that would support almost all of the allegations, evidence that would show the risks being alleged were overstated, and even uncovered concerns that neither party had raised that I believed a judge would find important in deciding custody.  Whom to believe and what weight to assign the evidence is the judge’s task.  Guardians can try to finesse these issues by implicitly weighing evidence or deciding credibility within their report, but doing so usurps the judge’s role and renders the guardian less effective (once a guardian starts calling one party or another a liar or decides that one parent’s safety concern is more compelling than the other parent’s safety concern, no one trusts the guardian).  It was going to require observing the parties while they answered uncomfortable questions about these allegations  for the judge to properly do her job.

Thus I requested testimony.  Neither the parties nor the attorneys complained too much about my request (unnecessarily challenging the guardian is something most smart litigants and attorneys avoid) so a 15 minute temporary hearing was rescheduled for a 90 minute testimonial hearing.

At the start of the hearing, I could sense the judge’s displeasure when confronted with a ninety minute temporary hearing involving testimony instead of a typical shorter hearing involving affidavits and argument: docket time is scarce and valuable, and I have a well deserved reputation for often doing things that are uncommon in family court if I believe my way is the correct way of doing things.  I could see the judge thinking “why does Mr. Forman believe this hearing deserves ninety minutes when I can typically decide custody in a fraction of the time?”

Yet as the hearing proceeded, I could observe the judge nodding her head in amazement, disagreement, or displeasure at what she was hearing.  I am convinced that judge learned myriad relevant facts that never could have been gleaned from a perusal of affidavits.

I don’t know the judge’s ruling yet and that ruling is unnecessary for my analysis.  The hearing left me firmly convinced that seeking testimony was the proper way for me to “represent the best interests” of the children.  As a guardian ad litem, it is not my job to decide who should have custody; it is my job to provide the judge all the information needed to make a just decision on custody.  Requiring the parties to state their allegations and defend the other’s accusations under oath was part of what I believed necessary for that judge to reach a just decision.

Each year the Charleston County family court resolves hundreds of temporary custody disputes on fifteen minute hearings based on a review of affidavits.  This procedure is followed statewide for thousands of cases a year.  Each such hearing decides the custody of a child or children for a year or more.  Further, the decision reached at the temporary hearing has significant impact on the development of the child’s relationship with each parent and upon the final resolution of the child’s custody.  Under what analysis can it be considered a misuse of the court’s docket time to devote a couple of hours to these decisions?  Have we lost sight of how important attachment to caregivers is to a young child or how interminable a year or two can be in a child’s sense of time?

Not much of my practice is devoted to guardian ad litem work, though I am trying to develop that part of my practice.  I am largely dissatisfied with the way guardians operate, which is why I have published my views of the guardian’s proper role and am organizing the state-wide guardian ad litem recertification training for 2010.  I perceive my guardian work as having a purpose in addition to “representing the best interests of a child”: testing out my ideas of a guardian’s proper role and providing what I believe is the correct example as to how to properly represent the best interests of children.  Certain temporary hearings require testimony to enable the family court to do justice; in representing the child’s best interest, the guardian’s must demand testimony in such circumstances.  While the judge may have been nonplused at the start of today’s hearing, I hope that judge believes she reached a better decision because the parties were required to testify.

Meanwhile, I am going to keep politely demanding testimony at certain temporary hearings until the Supreme Court tells me that Family Court Rule 21 trumps procedural due process.

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