My colleagues frequently recount war stories in which their attempts to obtain substantive relief on a temporary basis early in the case failed while subsequent discovery uncovered evidence that might have led to a different temporary result. By then it is typically difficult if not impossible to obtain the requested relief until trial (or to settle the case on favorable terms until trial is imminent)–and it takes substantial time and expense to prepare a family court lawsuit to the point in which trial is imminent. Too often the clients of these attorneys have to reduce their goals–sometimes substantially–because they failed in their premature attempt to obtain substantive temporary relief.
Yet nothing in the rules of family court procedure compel a litigant to file a motion for temporary relief at the same time one files the summons and complaint. While absent a pendente lite change of circumstances one is only entitled to one motion for temporary relief, the plaintiff has almost complete discretion when to make that attempt.
In many lawsuits discovery will be useful in obtaining substantive relief: whether to obtain evidence from the other party that might bolster one’s own case; to have a guardian investigate circumstances regarding each parties’ care of the child(ren); to depose witnesses who might support one’s position but who will not willingly provide affidavits; to depose witnesses who support the other party but might provide helpful testimony under oath; or to subpoena important documents from third parties. In these cases a better strategy is often to file a motion for discovery, appointment of a guardian ad litem, or for drug, alcohol or mental health testing with the initial complaint and then seek substantive temporary relief after one has developed the necessary information. While this strategy cannot be used in emergency circumstances, in most real emergencies one should be able to obtain substantive temporary relief without discovery or a guardian.
When a party loses a motion for temporary relief that subsequently uncovered evidence indicates that party should have won, it should be considered a strategic mistake in seeking this relief prematurely. Only because attorneys reflexively seek their temporary hearing when filing a complaint is this failure not more clearly understood.
While there is some argument that because the South Carolina Rule of Civil Procedure regarding subpoenas, SCRCP 45, does not fall within the rules labeled discovery, SCRCP 26-37, one can issue subpoenas without obtaining the order of discovery that South Carolina Family Court Rule 25 might require. However some attorneys and judges believe otherwise and, absent an order of discovery, a motion to quash a subpoena is always a possibility. Even if that motion is not granted it might delay the acquisition of the subpoenaed records until after the motion for substantive temporary relief is heard. The safer approach is to obtain an order of discovery, issue the subpoena(s), obtain the desired records, and then seek temporary substantive relief.