Why family law in South Carolina is so underdeveloped

South Carolina family law attorneys frequently complain about the random nature of family court. A large part of the reason for this “randomness” is that South Carolina family law invests so much discretion in family court judges. The one area of family law in which judges have little discretion–setting child support–is the most predicable aspect of family law. However another part of the reason family court “justice” can seem so random is that appellate law is so underdeveloped on South Carolina family law topics. When there is published South Carolina authority “on point” it is easier to predict what a family court judge might do. Where there is no appellate decision on point, such predictions become much harder.

Yet the South Carolina appellate courts are doing little to develop this area of the law. Halfway through 2015, our state Supreme Court has seen fit to issue twenty-one published attorney disciplinary opinions but no family law opinions. Our Court of Appeals has only issued two published opinions–and one was a refiled decision from a 2014 opinion.

My impression is that there used to be a lot more published opinions in the past. In drafting this blog I selected two years to see whether there used to be more published family law opinions in the past. In 1988 (the year I started law school) there were 66 published family law opinions and in 1992 (the year I was licensed in South Carolina) there were 49 published family law opinions. In no year since I began this blog in 2009 have there been more than 35 published family law opinions and the past few years that number has been in the teens.

There are three ways of boosting the number of published family law opinions. Family law attorneys could start appealing–rather than just complaining about–the decisions they consider unjust. The Court of Appeals could publish a lot more of its non-summary family law opinions [earlier this year I noted two interesting termination of parental rights opinions that I believe should have been published]. Finally the Supreme Court could accept certiorari or direct review of more family law appeals. There would be much greater predictability in family law if our appellate courts were issuing sixty-six, rather than sixteen, published opinions a year.

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