Should there be automatic de novo review of temporary custody and support orders?

I’ve previously complained that South Carolina’s handling of family court temporary hearings violate due process.  This is because allowing such hearings to proceed on affidavits alone–and affidavits that do not have to be exchanged until the temporary hearing–do not allow parties to prepare to defend the allegations or confront the witnesses against them.

The November 2012 rule change limiting parties to eight pages of such affidavits–sixteen pages if the court will allow a 30-minute hearing–further compounds this due process issue.  Meanwhile, with it taking eighteen months or more from initial temporary hearing until trial, these due process violations become even more problematic: if false or misleading information is submitted to the court at the temporary hearing, the other party is expected to live with the resulting custody order or support obligation until trial.

With crowded court dockets and a limited number of family court judges, it is probably impossible under the current system to routinely have testimony for temporary hearings.  Given the complexity of much family law litigation, it is probably unrealistic to expect cases to proceed from temporary hearing to trial in under a year.  However there is something that could be done to ameliorate the due process issues from how temporary hearings are currently conducted: authorize automatic de novo review [a review in which the temporary order has no binding effect] of custody and support orders 90-180 days after the temporary hearing, ideally with the same judge conducting the review.

I am already starting to see many family court judges do something like this with custody cases.  They will appoint a guardian, authorize discovery, and allow a de novo review after the guardian has conducted an initial investigation.  Sometimes they will even reserve jurisdiction so that they will be conducting the review hearing.

There’s much wisdom to this–especially if the same judge conducts the review hearing.  Having a second hearing after a guardian has investigated and discovery has been conducted allows the court to determine how accurate the submissions at the initial hearing were and how well the child(ren) are doing under the initial custody order.  The guardian can conduct a neutral investigation and report back to the court on his or her observations regarding important factual disputes between the parties regarding the child’s best interests.  Conducting discovery allows the parties the opportunity to confront and discredit or mitigate the evidence and witnesses against them.  Having the same judge hear both motions encourages both parties to be credible in their initial temporary hearing submissions, as they are more likely to lose credibility with the court if they must appear before the same judge to whom they previously provided inaccurate information.

My own experience with these de novo reviews is that much of the time the parties decide to forgo them voluntarily, as the guardian’s investigation and discovery reveal that the court’s initial resolution was not an unjust one.  However, when such temporary resolutions were unjust, it can be prudential to have that decision reviewed in 3 to 6 months, rather than requiring a party to endure a year or more under a custody order that unduly interferes with the parental relationship.

While onerous support orders don’t have the impact of onerous custody orders–you can always get money back but you can’t ever get time with your children back–such orders can have substantial collateral consequences.  Sometimes one party is left destitute–unable to afford an attorney or unable to sustain a subsistence lifestyle without outside financial support–by temporary support orders.  If these support orders were obtained by inaccurate financial disclosure or inaccurate factual allegations, a de novo review can remedy this injustice.  Again, there will be many situations in which the parties decide to forgo such review, but having the parties understand that such review can be had as a matter of right should increase the accuracy of submissions at the initial temporary hearing and reduce the problems of living under an overly generous or inadequate temporary support order as the case proceeds through litigation.

If South Carolina is going to conduct temporary custody and support hearings on affidavits alone, parties should have the right to one automatic de novo review of such orders.

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