Archive for the ‘Jurisdiction’ Category

Was there wisdom in the “tender years” doctrine

There is no doubt that the “tender years” doctrine–which favored granting mothers custody of young children–would not pass constitutional muster in the 21st century. Such gender based classifications cannot survive strict scrutiny as there is no “compelling governmental interest” that favors mothers over fathers in determinations of infant custody and, even if there were, a […]

Help T. Ryan Phillips get Baker v. Hardwick published

I would love to see the May 24, 2017 Court of Appeals opinion in Baker v. Hardwick get published. Not just because T. Ryan Phillips and I share office space; not just because I referred him the appeal that he turned into a victory reversal. Baker establishes an important legal principle: the outer limits of […]

Court of Appeals vacates removal and TPR orders due to lack of subject matter jurisdiction

In the October 10, 2016 opinion in SCDSS v. Tran, 418 S.C. 308, 792 S.E.2d 254 (Ct.App. 2016), the South Carolina Court of Appeals vacated the family court’s removal order and termination of parental rights order, finding that DSS had failed to establish subject matter jurisdiction under the UCCJEA. Initially I thought the Court of […]

What aspects of family law require personal jurisdiction over the Defendant?

Two areas of family law do not require personal jurisdiction over the Defendant but only require in rem jurisdiction. Those areas are divorce [S.C. Code Ann. § 20-3-30] and child custody [S.C. Code Ann. § 63-15-330]. For these matters, a Plaintiff can file the action in South Carolina even if there is no personal jurisdiction […]

Litigating child custody does not, by itself, create personal jurisdiction for child support

Due to an increasingly mobile society, child custody litigation often moves to different states over a child’s minority. When both parents and the child no longer live in the state that issued the most recent child support order, or when the issuing state declines modification jurisdiction because the child has been absent from the state […]

Court of Appeals finds prenuptial agreement only partially limited family court’s jurisdiction

The March 26, 2014 Court of Appeals opinion in Meehan v. Meehan, 407 S.C. 471, 756 S.E.2d 398 (Ct. App. 2014) determined that the Meehans’ prenuptial divested the family court of jurisdiction for some issues but not the issue of attorney’s fees as it related to child custody and support. Prior to their marriage, the Meehans entered […]

Court of Appeals holds that multi-state child custody jurisdiction statutes are applicable to termination of parental rights/adoption cases

In the March 16, 2012 opinion in Anthony H. v. Matthew G.,397 S.C. 447, 725 S.E.2d 132 (Ct. App. 2012) the Court of Appeals held that the state and federal statutes for determining child custody jurisdiction in multi-state disputes are applicable to adoption cases that require a termination of parental rights (TPR).  Because the South […]

Common misconceptions about multi-state custody jurisdiction

At least a few times each month I receive a phone call or email from someone involved in a multi-state child custody case.  Since I deliberately restrict my practice to South Carolina, generally these folks get referred elsewhere.  However in communicating with these multi-state custody litigants, I perceive that they are frequently receiving inaccurate information, […]

 

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