Should there be automatic de novo review of temporary custody and support orders?

Posted Thursday, January 30th, 2014 by Gregory Forman
Filed under Child Custody, Family Court Procedure, Jurisprudence, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

I’ve previously complained that South Carolina’s handling of family court temporary hearings violate due process.  This is because allowing such hearings to proceed on affidavits alone–and affidavits that do not have to be exchanged until the temporary hearing–do not allow parties to prepare to defend the allegations or confront the witnesses against them.

The November 2012 rule change limiting parties to eight pages of such affidavits–sixteen pages if the court will allow a 30-minute hearing–further compounds this due process issue.  Meanwhile, with it taking eighteen months or more from initial temporary hearing until trial, these due process violations become even more problematic: if false or misleading information is submitted to the court at the temporary hearing, the other party is expected to live with the resulting custody order or support obligation until trial.

With crowded court dockets and a limited number of family court judges, it is probably impossible under the current system to routinely have testimony for temporary hearings.  Given the complexity of much family law litigation, it is probably unrealistic to expect cases to proceed from temporary hearing to trial in under a year.  However there is something that could be done to ameliorate the due process issues from how temporary hearings are currently conducted: authorize automatic de novo review [a review in which the temporary order has no binding effect] of custody and support orders 90-180 days after the temporary hearing, ideally with the same judge conducting the review.

I am already starting to see many family court judges do something like this with custody cases.  They will appoint a guardian, authorize discovery, and allow a de novo review after the guardian has conducted an initial investigation.  Sometimes they will even reserve jurisdiction so that they will be conducting the review hearing.

There’s much wisdom to this–especially if the same judge conducts the review hearing.  Having a second hearing after a guardian has investigated and discovery has been conducted allows the court to determine how accurate the submissions at the initial hearing were and how well the child(ren) are doing under the initial custody order.  The guardian can conduct a neutral investigation and report back to the court on his or her observations regarding important factual disputes between the parties regarding the child’s best interests.  Conducting discovery allows the parties the opportunity to confront and discredit or mitigate the evidence and witnesses against them.  Having the same judge hear both motions encourages both parties to be credible in their initial temporary hearing submissions, as they are more likely to lose credibility with the court if they must appear before the same judge to whom they previously provided inaccurate information.

My own experience with these de novo reviews is that much of the time the parties decide to forgo them voluntarily, as the guardian’s investigation and discovery reveal that the court’s initial resolution was not an unjust one.  However, when such temporary resolutions were unjust, it can be prudential to have that decision reviewed in 3 to 6 months, rather than requiring a party to endure a year or more under a custody order that unduly interferes with the parental relationship.

While onerous support orders don’t have the impact of onerous custody orders–you can always get money back but you can’t ever get time with your children back–such orders can have substantial collateral consequences.  Sometimes one party is left destitute–unable to afford an attorney or unable to sustain a subsistence lifestyle without outside financial support–by temporary support orders.  If these support orders were obtained by inaccurate financial disclosure or inaccurate factual allegations, a de novo review can remedy this injustice.  Again, there will be many situations in which the parties decide to forgo such review, but having the parties understand that such review can be had as a matter of right should increase the accuracy of submissions at the initial temporary hearing and reduce the problems of living under an overly generous or inadequate temporary support order as the case proceeds through litigation.

If South Carolina is going to conduct temporary custody and support hearings on affidavits alone, parties should have the right to one automatic de novo review of such orders.

4 thoughts on Should there be automatic de novo review of temporary custody and support orders?

  1. Jessica Birt says:

    Thank you so much for writing these blogs and making them available to read! As a young lawyer to the bar here in South Carolina, I find them incredibly helpful in addressing issues I face but rarely find answers to in the rules or caselaw.

    I recently appeared before Judge McLin at an emergency hearing for child custody and as part of her ruling she allowed a de novo review upon submission of the GAL’s report, which was due 60 days after entry of the order. This was the first time I’d heard a judge specifically allow the parties this right as a part of their ruling and was glad she did, even though it was my client who was given temporary custody as we had requested. I believe a right to a de novo review is critical to protecting due process and hope that this will soon become an automatic right assumed with such orders.

  2. Hear, hear. I fully agree with the wisdom of conducting such de novo review hearings within a couple months of the initial temporary hearing. I would possibly go so far as to say that this should be an actual rule.

    My experience mirrors yours — where sometimes a party makes outlandish and unsupported (read: false) accusations in an affidavit at a temporary hearing, which results in one party being left with an absolutely terrible temporary order. The result sometimes is that the other party is essentially penalized for taking a more reasonable, thoughtful approach and refusing to sling mud. It further compounds the situation when a judge, over counsel’s objection and arguments, allows a party to play fast and loose with outright hearsay and bare, unsupported accusations. Then, in discovery, it is quickly determined that many of the accusations (especially financial ones which tend to be more readily discoverable) are completely false, yet the aggrieved party is without any real remedy other than trying to accelerate things to a final hearing or getting lucky with finding grounds for a Rule to Show Cause or changed circumstances to warrant a modification of the temporary order.

  3. I couldn’t agree with you more. While I expect any resistance to be rooted in the idea that such a review would crowd already crowded dockets, I don’t see it that way.

    Absent such a review, one party being saddled with a “bad” Temporary Order derived from misrepresentations and premature assessments will ultimately lead to further motions and docket time deemed necessary by the disadvantaged party as he or she clamors for leverage, for proper facts to be taken into consideration and falsehoods addressed, and for any sort of shift in momentum, whereas getting the Temporary Order right from the start (or from 90 days from the start) would hopefully lead toward settlement of at least some of the issues. With a better understanding of facts and circumstances, perhaps many of these later filings could be avoided.

    The other alternative to the automatic de novo review would be of the sort seen in New Jersey courts following adoption of best practices. While someone with more experience there could elaborate more, the general idea is that motions must be filed 20-something days before a hearing, returns must be filed 10-someting days before the hearing, and replies a few days thereafter — the idea being the elimination of the trial-by-surprise we see here due to Rule 21. Even with that sort of system, however, the court would still not have the advantage of a GAL investigation and better facts. My worry, as with all bureaucracies, is that the Court will find a way to create new problems through the fixes applied for the current ones.

  4. B. Stevens says:

    The problem of using false claims in an affidavit can be solved by holding the claimant, the client, and the attorney responsible for harm that their claim has caused. If the courts took more care to keep the slop out of the courtroom and to occasionally penalize those responsible for barnyard tactics, then the courts might find the both number and complexity of petitions reduced.

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