On October 1, 2025, South Carolina began implementing a new version of Rule 21, SCRFC, addressing the procedures for family court temporary hearings. As Chief Justice John W. Kitteredge noted in a webinar explaining the rule, one of the goals of these new procedures was to end the “trial by ambush,” in which each side would see the other’s affidavits for the first time at the temporary hearing, that the then-existing procedure allowed. I have long complained that the previous procedure was a clear due process violation. The new procedure addresses the lack of notice and inability to confront witnesses that the prior procedure allowed.
The way the new procedure addresses these concerns is by requiring temporary hearing affidavits to be filed and served five days (and, from the webinar linked above, it is clear that this means five business days prior to the temporary hearing) with the parties being allowed to file reply affidavits at the temporary hearing. As Rule 21(f)(2), SCRFC, notes:
Except as stated in this paragraph, all written evidence (including supporting documents) shall be served and filed no later than five days before the date of the scheduled hearing. At the hearing, either party may serve and file reply affidavits in response to the opposing parties’ evidence, and additional detail in support of a request for attorney’s fees and costs.
Subsections of Rule 21(f)(4), SCRFC, place page limits on the affidavits and affidavit exhibits that can be submitted for temporary hearings. Rule 21(f)(4)(A) states “If the hearing is scheduled for fifteen minutes, each party shall be limited to ten pages of affidavits.” Rule 21(f)(4)(B) states, “If the hearing is scheduled for thirty minutes, each party shall be limited to twenty pages of affidavits.” Rule 21(f)(4)(E) places limits on exhibits attached to and documents referenced in the affidavits:
Any affidavit may refer to one or more documents. If documents are attached as exhibits to affidavits, the total number of pages of exhibits submitted by a party shall not exceed thirty, and these thirty pages shall not be considered in the page limitations for affidavits described above. If a document is referenced but not attached, the document shall be served with the affidavit on the opposing party and must be available in the courtroom at the hearing. Any such document shall comply with the South Carolina Rules of Evidence. Voluminous documents shall be summarized in the manner described in Rule 1006, SCRE.
The requirement of serving affidavits five business days before the temporary hearing and allowing for “reply affidavits in response to the opposing parties’ evidence,” provides parties notice and, if not an ability to confront the other side’s witnesses, at least the ability to respond to the other side’s claims. However, these reply affidavits fall within the page limitations of Rule 21(f)(4) and must reply “in response to the opposing parties’ evidence.”
This authorization of reply affidavits has changed my temporary hearing preparation in three ways. First, it relieves me and my client of the burden of trying to anticipate the other side’s claims in drafting the initial tranche of affidavits. I now draft initial affidavits that support my client’s position on the contested issues raised in the pleadings, the motion for temporary relief, and any return, with the understanding that my client can address the other side’s affidavit allegations in reply affidavits.
Second, being mindful of the page limits set forth in Rule 21(f)(4)(A, B & E), I try to reserve 25-50% of these page limits for reply affidavits. If one approaches or hits the page limits imposed by these subsections in one’s initial submissions, one cannot adequately reply to the other side’s initial submissions. Under the prior procedure I had to attempt to anticipate the other side’s arguments in my client’s initial submissions (as there was rarely going to be additional submissions). Now, I can wait to see what the other side actually alleges in its initial submissions and then respond in reply affidavits—but only if I don’t hit or approach the page limits in my initial submissions.
Finally, to ensure that reply affidavits comply with the requirement that they reply “in response to the opposing parties’ evidence,” I have each new paragraph or section of a reply affidavit indicate the section of the document it is replying to and either quote or paraphrase the section of that document it is replying to. As an example, I would have a paragraph begin, “At paragraph three of the Defendant’s affidavit, he states that the children are frequently tardy to school after they spend the night at my home.” The remainder of that paragraph of the reply affidavit would then be my client’s response to that allegation.
There are two purposes in drafting reply affidavits that way. First, it directs the court to what allegation the affidavit section is replying to. Second, it ensures that the affidavit section is actually replying “in response to the opposing parties’ evidence.” I anticipate objections at temporary hearings to reply affidavits that aren’t directly replying to the opposing party’s initial submissions. Using this procedure to draft reply affidavits reduces the risk of such objections and ensures objections on that basis are not sustained.
As a result of the new Rule 21, I no longer try to anticipate the other side’s allegations in the initial affidavits. I try to reserve 25-50% of my page limitations for reply affidavits. I ensure reply affidavits are clearly replying to something alleged by the opposing party.
