When does a judge’s ruling become a valid order?

Early in my family court career I used to debate with my colleagues as to when a family judge’s ruling became valid. The (super-)majority view was that these rulings became valid when the judge issued his or her ruling (whether orally or in a memo form). Some felt the “order” became valid when the judge signed it. Few agreed with my belief that the order didn’t become valid until it was actually signed by a judge and filed with the clerk’s office.

As South Carolina Rule of Civil Procedure 58(a) notes, “A judgment is effective only when so set forth and entered in the record.” In 2006 I actually went to the South Carolina Supreme Court on that issue, which resulting in an opinion that an order wasn’t valid until it was signed by the judge and filed with the clerk’s office. Upchurch v. Upchurch, 367 S.C. 16, 624 S.E.2d 643 (2006). Yet, seven and a half years later, many of my colleagues, and even some judges, continue to believe that whatever comes out of a judge’s mouth or memo ruling is a valid court order.

The issue isn’t merely academic. When judges issue their oral or memo rulings they expect the parties to comply with it. However oral rulings are subject to misinterpretation, as the children’s game “telephone” demonstrates. Even written rulings are subject to revision by the judge. See McComb v. Conard, 394 S.C. 416, 426, 715 S.E.2d 662, 667 (Ct. App. 2011) (stating “[u]ntil written and entered, the trial judge retains discretion to change his mind and amend his . . . ruling”) (citation omitted). Without a signed order it impossible for an attorney to advise a client exactly what his or her legal rights and obligations are.

Even a signed but unfiled order is still unenforceable. That is because the order does not become valid until it is actually filed with the clerk’s office. “An order is not final until it is entered by the clerk of court; and until the order or judgment is entered by the clerk of the court, the judge retains control of the case.” Bowman v. Richland Mem’l Hosp., 335 S.C. 88, 91, 515 S.E.2d 259, 260 (Ct.App.1999) (citation omitted).

Requiring an order to be filed before it can be enforced is also important because it preserves the right of appellate review. One has the right to seek supersedeas of a judge’s order but the Court of Appeals will not consider supersedeas until the order is filed. That a signed but unfiled order cannot be reviewed for error is one reason the law does not treat such orders as binding.

In situations in which a judge wants immediately compliance with a portion of his or her ruling the best option is to ask the judge to execute a simple bench order and to file that order with the clerk’s office immediately–with the understanding that a more detailed order will follow. Further, because judges’ rulings don’t become orders until filed with the court, best practice is to draft proposed orders as soon as the judge issues his or her ruling and make sure there is minimal delay between the order being signed by the judge and the order being filed with the clerk’s office.

Anything a family court judge wants done immediately merits the effort of obtaining a filed order.

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  • I recently had a situation where judge at emergency hearing ordered my client to take a drug test “after the hearing.” Client took it about 16 days later but one day before the signing and filing of the order requiring him to take the test “immediately upon leaving court.” Major discrepancy with language by a lawyer I believe took undue literary license with the oral order to prepare the written order.

    Same case, same lawyers, one year later. Lawyer asked for another drug test. This time lawyer takes a proposed order to the hearing so that it can be signed, filed and served before the defendant leaves court.

    Different case, same lawyers, next day. Lawyer takes a proposed order to court for immediate relief. I take a notice of appeal so that as soon as client is served with the order, I can serve the notice of appeal that will act as a supersedeas. Case recessed for more time. World War III averted, at least temporarily.

  • shy

    Judge ordered visitations to my children grandmother after I adv the court that my children told me their grandmother sells drugs from her home. Judge did not sign order nor did i get a copy of court order

  • Loretta

    Does a family judge get to overrule a appeals court order?

  • jayboe

    I recently had an emergency hearing where I was granted temporary custody as primary of my children ages 8 and 9… judge ruled and then told my attorney then a couple days later emailed my attorney to draft the order based on her rulings after drug test results were submitted to judge and have it in her office within 10 days. Court was 27 days ago, I still have not gotten the order signed but have my children with me and have had for past 27 days , I cannot transfer schools or show anything proving I’m primary until I get this order signed I’m having to drive 3 hours a day for back and forth to school, not to mention taking off of work to do so.. does anybody know how long a judge has to sign an order from an expedited hearing?

  • A friend of mine was sentenced in 1997 on 13 counts of altering VIN numbers. He is not elgible for release until 2041. Is it possible that he can be released sooner or that the judge can change the sentencing and have the sentence reduced ?

    • David

      Yes. He needs to file a motion in the court he was convicted. It’s a motion for “sentence modification” in which he’ll go back before the same judge asking for his sentence to be reduced. I know this based on personal experience. In my case, the judge felt he made the right decision the first time around and denied my motion. It’s worth a shot. You don’t need an attorney although I’d highly recommend it.

  • I have a huge problem with waiting for signed orders. It was ordered by a judge that child support be offset to the difference of my income and my ex spouses. My ex spouses lawyer took over two years to sign his copy of the order which made it impossible to file. As a result maintenance enforcement garnished wages, cancelled my passport and suspended my drivers licence. Where is the justice! The system should be electronic were judges set them on computer systems with proper security, really they are the only one’s who total understand their intent.

  • Ann

    Which side normally writes the judge’s ruling in a final hearing?

    • The winning side.

      • April Miller

        Can another attorney outside of the case write and file the order?

        What if they don’t? ‘Winning’ side knows it will be immediately appealed (because of perjury) but that attorney doesn’t do appellate work.

  • holly chelle

    if i went to court but my custody agreement was never signed off by the judge is it valid? it has been five years ago.

  • Steph k

    I had a judge give me custody after 7 years of court battles it has been well over a month since court but still no papers to prove it. I was told it is because my ex refuses to sign the papers because he will then have to pay childsupport for our children. Other then waiting for him to show up where I live and scream I am withholding children and take them what can be done? No current order has been filed to show the change and the state we live in enforces my child support and I am still paying current and arrears to him.

  • Dee

    Can the judge make a ruling without a hearing?

    • Yes.

      • Cathy

        How? How can that be possible if sides are not heard?

  • Phoebe B

    During my divorce hearing the judge ordered us to,split our retirement fifty percent. When his attorney drafted the order them got it signed, he changed it to read I,forfeited my rights to his retirement. I didn’t find out until it was filed in court. I paid over $500 for a copy of court transcript and tried to file an appeal but couldn’t afford an attorney,(he still owes me over $100,000 in back child support) and I apparently didn’t write the appeal,correctly. Can an attorney just do this and get away with it?

  • Andrew

    I’m in a custody battle now. The judge made a ruling and the other parties lawyer was told to do the order after hearing. He didn’t serve me with it until 34 days after court. Is there a way I can fight that? Or does he get to ignore the requirement of having to serve me within 10 days of the ruling?

  • Nathaniel

    My daughters parental rights where taken from her without notice of any type and given to his dad can a judge di this with out notice

  • Jeff Davies

    In family law a judge ruled that the plaintiff lawyers to submit and Order to the clerk the lawyers never submitted an order and it judge never submitted signed paperwork or order only evidence is in Court minutes is this legally binding

  • Jeff Davies

    In family law a judge ruled that the plaintiff lawyers to submit and Order to the clerk custody and visitation. the lawyers never submitted an order and the judge never submitted signed paperwork only evidence is in Court minutes is this legally binding. In Southern California

  • Kimberly

    I personally never was served with papers for the custody hearing, however the court gave temporary custody of my four year old to his father, I never received a bench warrant or held on contempt of court, I’m not a lawyer but Due to those last details, I believe the courts knew I wasn’t served and continued on without me, and this is the commonwealth of va, How is this possible I don’t understand, but I feel like the court abused it’s discretion… How could they do this ?? Is this legal?

    • veeeeee

      You have to do everything you can to get them back.. Go to parenting classes. Do Everything to reverse the negative character they painted of you.. File a motion to get your kids . or try to get custody back.. W.e but don’t go in court unprepared. Prove all that you can.
      Certificates and any case workers that can speak of good things about you.

      • Kimberly

        Thank you, I have obtained a lawyer and have I still have the text messages from the father making excused of why he didn’t pick up our son ,and also him asking me to return his possessions he left in my home ,when I allowed him to store his belongings cause he had no where to take them ,including a scale he weighed his drugs on. I am going to ask the court to order him to take a drug test. Preferably a hair folicle test. I know for certain he uses drugs. From day one he was never there for my son, he told me he wanted custody so he won’t t have to pay child support. Thanks again for everything, I don’t mean to vent.

  • Matt

    Here’s the situation, I live in Texas and currently have temporary custody of my daughter. Final orders have been made up by my lawyer’s office and signed off on by me. The mother of my child has a mental illness not making her fit to take care of our daughter and she has also not responded to my lawyer’s office nor signed off on the final orders. If the final orders have not been signed by the other parent and the lawyer’s office decides to push them through to get to a final hearing, is a drug test required before the judge signs off on the orders making them valid? If so what type of drug test? If drug or alcohol testing was not put in final orders is a drug test still required?

  • Soledad

    Judge ordered me to do something illegal:
    So I had a temporary hearing in the summer and was ordered to give my husband visitation from 10am to 6pm on Mondays but now school has started and our order doesn’t mention making any changes when school starts and we don’t have a mediation date set. So now I have to choose to either follow SC law and keep my child in school or have her miss school every other Monday(the judges order) . I had asked the judge to make his visitation on weekends but my ex is only off on Mondays and wouldn’t change his schedule.

  • Donna

    Family law judge in oakland county mi terminated my legal guardianship after 9 years because mother wanted child back. Judge ignored forensic psychiatrist report there is violence in home and child would be in harms way. Gal said I did not complt with visitation orders when there is proof daughter kept bringing him back. Yet they blamed me. What do I do. Child wants to come home and is scared.

  • ROB

    I have a 14 and 17 year old son from my xwife. She aquesed me of childe abuse and I fought her and her lawyers for almost a year and I won. Now the Judge asked the minor’s consol to get the final papers ready . She misinterpreted a lot of things in the papers and wants me to sign them. When I asked her to change it to the Judges original order she said we need to get the transcript from court.

    What are my legal options?

  • My ex and i had a mediation with our lawyers so that we could settle things outside the court. Both parties came up with an agreement and our lawyers stated that by the end of the week they’d have the written version so that we could sign and it qould be sent to a judge. The next day, my ex sent a text stating that he changed his mind about his end of the deal but wants to continue with the rest of the agreement. My lawyer stated that the agreement could not be fulfilled because:
    1. My ex changed his mind
    2. We never signed anything and it never went to court

    So now my ex and his lawyer filed an emergency hearing stating that i wasnt complying to the agreement. Can they do that?

    • Of course they can do that–they did. Your real question is “can they get away with it?”

  • Stephanie

    What if both parties have signed and it’s been filed with the court, but not yet signed by a judge. Can it still be enforced without a judge’ signature?

  • Jen

    Its a bit complicated, but I’ll try to make this as brief as possible. I was arrested in February and charged with burglary (f1), conspiracy to burglary (f3) and theft (f3) and had NO prior record (not even parking tickets). I served 2.5 months and petitioned the court for a reduced or unsecured bail. It was denied but i was granted unsecured directly to rehab. I served 31 days there. In Aug i was sentenced 6 to 23 months with credit for time served, including the 31 days at rehab. I had to go back to serve the remainder of my time, which I did. I suffered a miscarriage three days prior to turning myself in and needed medical attention. I once again, petitioned the judge for early release to house arrest so i could see my obgyn. My petition was granted 14 days before my original release date… however, the morning I was released, I learned that my attorney accepted the conditions of my house arrest without my consent and I was subsequently sentenced to 5 months of house arrest. I would have been released in 14 days and been on probation… NOT house arrest. I know i wouldn’t get “good time” credit, so really I would have had to do 6 weeks on HA. My question is this: Shouldn’t my lawyer have ran the deal by me before I was blindly relrased into 5 months of house arrest? And can I get this 5 months reduced back to my orig 6 weeks, as long as I have no issues while on HA till then? Thanks in advance for any advice you can offer.

  • karen yee

    issues:
    Pariental alienation does not need expert witness/pariental alienation syndrome needs expert witness. You can take full custody if accused of pariental alienation

    buying a pet for your own home is pariental alienation

    reporting allergies to dr and submitting pictures of rash is pariental alienation—later resulted in 2 anaphylaxic episodes needing epipen (ex states not emergency so do not have to inform other parent)

    judge refuses to fix child support calculator worksheet—omits 1 child so mother has to pay father child support when father’s salary already capped due to worksheet really earns 5-6 times mother’s salary

    Harvard psychologist testified to father emotionally abusing child and preventing child from contacting mother; Other attorney stated for the record that psychologist is bullying her because he corrected her and stated that is not what I had stated…she tried to twist his words. Judge did not catch.

    The word “shall” means optional therefore father does not have to complete anger management classes.

    special action appeals ruled to abandon supervised visitations for mother but family court judge ignored order and never responded.

  • Nicole

    Please help my court order was never filed with the clerk i need my back child support im in sc.i have no one to help.i told dss.but they have done nothing

  • my brother was charge with two charges of criminal with a minor in frist degree. he did 4 and half year in south carolina jails. now he was told he was going to be transfere to the county jail to see judge but he been in that jail since 11/21/16 and not able to see judge for release him or bail hlim. he won the appeal and court supreme cases and we dont understant why he is in maximum security and when he was in minimum security from others jail. he havent been able to speak with no one and no one why he is there. can you explain me why is taking to so long?

  • Judy Ann Jackson

    Thank God…I’ve been FORCED TO PAY THESE FOLKS 18,000.00 PLUS 25,000.WITHOUT A COURT ORDER SIGNED BY A JUDGE OR MYSELF? I WANT MY MONEY AND 85,000.00

  • Mike

    A judge verbally ruled no damages to be awarded and also gave his reasons. Later judge retired and attorney filed and won damages with another judge. I did not have an attorney. What can I do as now I have a judgement againt me and my Company.

  • Fred Fowler

    I was in court the day of my custody modification I had taken out on my child’s mother. Her lawyer wasn’t there but I was told by the Judge that it would be it would be heard at 1:30 pm 6 days later. I was there about 1:10. I was told the trial was done at 11:00 that morning and as I wasn’t there, the Judge had given the mother full custody. I had never received anything in writing saying what time, only told by the Judge by mouth to be there at 1:30. What can I do? I haven’t received anything saying that she has full custody now but have been told that by her lawyer over the phone.

    • I have a blog on my website describing what you can do. You are welcome to retain me to do it.

  • Being sued by my family (Co-Trustee and beneficiaries) for breach. At emergency hearing requested, Judge made oral rulings, including one that said my attorney had to stay on the case. Judge was transferred off bench, my proposed order ignored by him, and my attorney filed another motion to withdraw with new judge, and judge granted it. Submitted Motion for Clarification and it was IGNORED. Now forced to defend myself as “pro se”. Cannot afford attorney.

  • C.Bond

    My ex wife and I had an agreement with our lawyers to have my kids 50% of the time. Everyone agreed on the decisions. Her lawyer signed but my lawyer forgot to sign and never file the agreement which we only found out after 9 months of practicing the schedule, visitations and other things written on the rule 11 agreement we drafted. My ex wife contested after finding it that she did not want it anymore and that she was just being forced to do that. Hearing was made and the decision of the Judge was on her terms and condition. I was given back to expanded standard possession. I was devastated. Can you advise me what to do? Can i appeal the decision made by the Associate Judge? If so, what is the chance I could get back the agreement and rule over the associate Judge by the district Judge?

  • Melissa

    When I went to get a copy of my (now) husband’s divorce order from his first wife, I found it that the judge signed it back in 2001 , but it was never filed by the court clerk. The current clerk marked through the old name and just put her info on it and dated it on the day that I got the copy (December 2016). The DAs office is the one that brought it to my attention that it it appeared to have not ever been filled. I asked her if this meant they were still technically married all this time and she said it is definitely something to look into with a lawyer. Can he still be held responsible for support owed to her since the order wasnt properly filled with the court clerk?

  • gillian

    Bitter Bitter Bitter divorce, with ex husband paying the most expensive lawyer in the area a crazy retainer to get sole custody, physical and legal, of our then 2 year old citing that I am a drug addict (nothing but Cymbalta, sorry) and I dont provide a safe place for my child. I live in a 4th generation home I BOUGHT myself before we married from my grandmothers estate. I have my own business and I also run an AirBNB loft with my guesthouse, and this has proven to help with bills he left me with and my kids actually love meeting my BACKGROUND CHECKED tenants. Two are actually good friends now.
    That said, his latest attempt is because I decided to move, and since I have main physical custody with schools and child support, he was not happy and has started up again with all the false crap. In between tenants, the house is usually empty but it was broken into and severely vandalized. my ex husband knows all of this happened and called CPS to tell them I was living in squalor. I dont live there at ALL, let alone in squalor. they gave my 4 year old daughter to him with reasonable visitation for me until home visits. the CPS woman was god awful and totally biased, came and saw our nice new house and said she still had to see the old house, but never went back to see thats not how we lived at all. the court, based on her recommendation (she spoke more ghetto than Dave Chappelle and seemed to lack general spelling skills) granted temporary custody to him until a GAL can review. I met with him and showed him that the clerk made a huge error on the order, showing “MOTHER gets full custody”. he acknowledged its legally binding but I decided to just wait and keep being strong. then the ex denied me ONCE AGAIN (I have seen her 2 times in 3 weeks) a visit this weekend to get her baby chicken and baby rabbit for our small farm…..to take her to my estranged family’s house Sunday (knowing I am hurt by all of this). its not about our daughter, its about HIM trying to hurt ME. I have kept calm this time but today I just grabbed the signed original order, knowing there is an error but also knowing it is ordered and filed, and got her from where he has been dumping her. He is threatening right and left but when I found out he has been leaving her with this person and her boyfriend 2-3 nights a week, I lost it. Now what??

  • Glenda Lancelotti

    Hello, My divorce & custody case has been finalize. The court order that my attorney prepare all judgement orders but my attorney is no longer my attorney and he did not complete the paperwork. He had me signed a subsitution of attorney. So my judgement orders still need to be prepared, Is this something the court can do now that I do not have an attorney?

  • Natasha Bullock

    I was granted temporary emergency orders on September 15 with no visitation. The respondent filed emergency orders with visitation on October 10 and it was signed by a different judge. What do I do? I was told it was illegal for another judge to do this. I don’t think he looked at my case. I took visitation because the father was a habitual user of drugs and alcohol and he was violent. How to I get it back to no visitation until this matter is heard- family law- child custody – no divorce

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