When abuse and neglect and private custody cases overlap

Posted Thursday, March 21st, 2013 by Gregory Forman
Filed under Child Custody, Department of Social Services/Child Abuse and Neglect, Family Court Procedure, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Not infrequently a claim of abuse or neglect against one parent will lead another parent to seek custody.  Other times a private custody case will lead to a referral to the Department of Social Services (DSS), which leads that agency to bring an abuse and neglect proceeding.  Either way, the result is concurrent DSS abuse and neglect and custody proceedings.

Such simultaneous proceedings create common procedural and budgetary issues.  DSS will not want the cases consolidated because DSS wants to simply focus on abuse and neglect issues and will not want to become involved in the private custody case.  However, having the same testimony repeated for the abuse and neglect proceeding and the private custody case wastes judicial resources and requires additional attorney and witness fees.  Further separate trials can lead to inconsistent results if one judge finds abuse or neglect while another judge awards that party custody or if one judge fails to find abuse or neglect but the second judge refuses to award a party custody upon the belief that this party abused or neglected the child.

A few years ago, I devised a solution that mitigated the problems and waste inherent in separate trials while protecting DSS’s desire to stay out of the private custody dispute.  This resolution involved partial consolidation on the following terms:

  • The cases would be heard by the same judge in the same term of court
  • The DSS case would proceed first and at its conclusion the private case would begin
  • All testimony elicited in the DSS case could be considered by the trial judge in the private case on all issues without the necessity of recalling these witnesses
  • The parties to the private case could recall any witness from the DSS case in the private case

This resolution allowed both cases to be heard by the same judge, eliminating the risk of inconsistent results.  The DSS case proceeded first and, because the parties to the private case could recall any witness, they could limit their examination of those DSS-case witnesses to abuse and neglect issues with the knowledge that they could later recall these witnesses to testify on remaining custody issues.  This enabled DSS to proceed as though the private case did not exist.

However, because the testimony elicited in the DSS case could be considered in the private case, and because the same judge decided both cases, the expense and waste of duplicative testimony was eliminated.  While the case settled mid trial, the opposing attorneys and trial judge all thought it was a wise solution to this recurring problem.  It’s a resolution I recommend in all my cases in which both private custody and DSS abuse and neglect issues overlap.

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