What Happens at Family Court Temporary Hearings?
Typically, the first hearing in any contested family court case will be a motion for temporary relief. The rules and procedures surrounding these motions are unique and are set forth in South Carolina Family Court Rule 21. Not all family court motions are motions for temporary relief. A basic analysis is that motions that seek what a family court litigant ultimately seeks at trial but on a temporary basis (such as custody, visitation, support, attorney’s fees and restraints) are requests for temporary relief whereas motions seeking relief that cannot be modified or adjusted at trial or affect procedural and not substantive rights are not motions for temporary relief.
Under Rule 21(a), SCFCR, temporary motions must “be served not later than five days before the time specified for the hearing, unless a different period is fixed by order of the court.” Under South Carolina Rule of Civil Procedure 6(a), “When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation.” Thus, unless the court sets a shorter notice requirement, temporary motions actually require five business days notice. Temporary motions that are set for hearing by the court upon less than five business days notice are typically referred to as “emergency motions.”
Under Rule 21(b), SCFCR, “[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.” Further, under Rule 21(c), SCFCR, “affidavits filed at a temporary hearing need not be served on the opposing party prior to the temporary hearing.” Because the family court rarely takes testimony at temporary hearings and affidavits do not need to be provided beforehand, family court temporary motions are often described as “motion by ambush.”
A November 21, 2012 Supreme Court order limits the number of pages of affidavits in support of opposition of a motion to eight, unless a party requests the clerk of court set the matter for a half hour:
All routine Temporary Hearings shall be allotted fifteen minutes and each party shall be limited to eight pages of affidavits, excluding the Background Information Form SCCA 459 (11/12), proposed parenting plans, financial declarations, attorneys’ fees affidavits, and attachments or exhibits offered only as verification of information contained in the affidavits. Parties wishing to extend the fifteen minutes limit to thirty minutes must request additional time from the Clerk of Court and will not be held to the eight-page document limit set forth herein
At the temporary hearing, the court will rely upon sworn witness statements (affidavits), rather than live testimony, and will review each party’s financial declaration. An explanation of how to draft affidavits can be found here: How Does One Draft an Affidavit? Each party or their attorney will be given 5-15 minutes to argue their position and explain to the court the temporary relief being sought. The court then issues a temporary order fixing the parties’ respective rights and obligations pending trial. At trial, the court’s temporary order carries no weight and cannot be used as evidence. Rimer v. Rimer, 361 S.C. 521, 527 n.6, 605 S.E.2d 572, 575 n.6 (Ct. App. 2004) (“Temporary hearings are not de facto final hearings, and we adhere to the principle that temporary orders must be without prejudice to the rights of the parties at the final hearing.”).
Meanwhile, the family court judge, at a temporary hearing, will make decisions regarding child custody, temporary child and spousal support and possession of the marital home that might remain in effect for a year or more. Because temporary orders can generally only be changed upon a showing of substantially changed circumstances or until trial, a temporary hearing is often the best opportunity a party may have to obtain the relief he or she is seeking (or stop the opposing party from obtaining requested relief). Substantial effort is often required to adequately prepare for temporary hearings.
A lecture on methods of reducing the surprise element of temporary hearings can be found here: Four Ways of Reducing the Surprise Element at Family Court Hearings.