Is it conscionable for private attorneys to bring child support establishment actions in South Carolina?

Recognizing that the title of this blog is provocative, I still rarely represent mothers seeking to establish child support and actively discourage most mothers from retaining me to do so. Given the preferential treatment such mothers receive when bringing these actions through the Department of Social Services (DSS), it is rare that I can honestly tell these mothers it makes sense to hire me instead.

First DSS charges a $25.00 fee for pursuing child support establishment and has streamlined procedures under South Carolina Code Title 63, Chapter 17, Article 5 that enables the Department to quickly reach a final resolution of the case. To file a private child support modification case requires a $150.00 filing fee, a $25.00 motion fee to set a temporary hearing, and a much greater time line to a final resolution (including, in Charleston, Berkeley and Dorchester Counties, mandatory mediation prior to trial). Further, filing through DSS makes payment of support through the court mandatory.

South Carolina’s Rule of Professional Conduct 1.5 prohibits an attorney from charging an “unreasonable fee.” Given that DSS staff attorneys won’t charge such mothers, it is the rare child support establishment case in which I can justify my fee as “reasonable.”

Further, given these streamlined procedures, the client is likely to get a quick final resolution if she has DSS handle child support establishment. Finally, under Article 5, issues of child custody and visitation cannot be brought up in a DSS child support case. While fathers can always file a separate action to establish visitation or custody, such claims are much more likely to be brought as part of a counterclaim in a private action than as a separate case.

No attorney’s fees, lower costs, quicker resolution, automatic pay-through-the-court, and no risk of counterclaims for custody or visitation are significant advantages that a DSS child support establishment case has over a private support action. For cases in which fathers are self-employed, may be hiding income, or make such substantial income that the guidelines do not apply (as of 2015, a combined income exceeding $360,000 per year), retaining private counsel to pursue child support establishment can be justified. However for the vast majority of case, I cannot simply justify representing these mothers unless they are adamant about not utilizing DSS’s services. It has been over a decade since I last handled one.

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  • DSS is overworked and understaffed. I once talked with a DSS attorney about the time they have for each case and the answer came to something like five minutes total for the whole case. DSS deals measures success in quantify of cases resolved rather than the quality of results.

    My experience is that most mothers never return to court to seek an increase in child support. This makes getting it right the first time critical. Many times a private lawyer will obtain a much better result than a DSS lawyer because of the time and attention devoted to the case. As a result, a $5 per week difference in child support for a two-year-old makes a difference of $4,160 over the remaining sixteen years of minority.

    Most of the time the trial judge will award attorney’s fees costs to my client so that what the cost to the client is the same for me as for the DSS lawyer. Admittedly, the client must pay me a retainer that the DSS lawyer does not require.

    As to counterclaims, consider this. Father gets a great result in the DSS case. He then brings a separate case for visitation. Mother counterclaims for child support. Trial judge rules there is no change of circumstances requiring an increase in child support.

    One can always make a case for not hiring a lawyer but in the long term it is generally a losing case. As a lawyer, I appreciate the need for informed, intelligent, unemotional, and professional advice from a lawyer who is my advocated and asks all of the necessary questions and considers all of the relevant facts and law. I am twice divorced, once contested and once uncontested. I hired a lawyer in both cases.

    You ask a good question but your response “throws the baby out with the bath water.” The question that needs to be asked is why do family court cases require so much time and expense and what can we do about it.

    • Thomas,

      I don’t know how DSS child support operates in the rest of the state, but in the 9th Judicial Circuit, DSS’s child support division has a number of excellent attorneys. One of them, Paul LeBarron, helps draft the guidelines. I can’t recall a negotiation conference that did not have an attorney for DSS involved and those attorneys are typically knowledgable and experienced. Unless there are complicated issues regarding income I doubt I can do better work than they do. Perhaps that’s a major reason I am so reluctant to pursue child support establishment cases.

      • Negotiations in Anderson are conducted by caseworkers.

      • Leona

        DSS sucks when it comes to child support. I have filed my case in 2013 and have yet to get anywhere. I was told bc its between NY and here it can take up to a year, I have waiting almost 3. Plus if it wasn’t me calling them every 30 days…I wouldn’t know where I stand at all.

  • Most of the people I see who have tried the DSS Child Support Enforcement route are very frustrated. By the time they get to me, they have spent significant time, sometimes well over a year, spinning their wheels in an effort to get support. Many times, the alleged father has never even been located by DSS. My investigators can typically locate him quickly, serve him and we get him under an order to pay support. I realize this is a small subset of all the people who seek support through DSS. And based on my observations of each Tuesday (commonly referred to as Father’s Day at the courthouse), there must be a large number of sucessful pursuits through DSS. But I do think that there are times when seeking support through DSS is not the best or most efficient option. In those cases, it is perfectly reasonable to pay a lawyer.

    • R. Dain

      MJ, I have the same experience and I receive numerous calls from parents, usually mothers, who have been working w/ DSS often over a year and have nothing to show for it. Often the non-custodial parents is never served and yet the client has their address. I get a child support order at the first hearing. It is outrageous that more funds aren’t spent on trying to secure child support. Most of these cases there is a DSS lien because taxpayers have been supporting these children while DSS does not forward their case. Better to pay a private attorney rather than never get an order.

  • I think all of you (Greg and those who commented) are correct. Each case has to be determined on a case by case basis. Having that meeting with a client to advise them of all the things you touched on is as important part of the process as any other step. That is why I charge a consultation fee. In some cases, I send the client on her way; others choose to retain me. But, I ALWAYS tell my client there is a “free” ($25 is almost free, right) option.

    One thing to note. I also represent fathers who have been notified of a negotiation conference with DSS. As such, I can sadly say that the enforcement and pursuit of establishing support in our area is lacking fervor. Sounds like Charleston has a better system.

  • If mothers are unhappy with DSS’s services and I can help them I am happy to take over representation. However I believe that ethically I have to inform them of the DSS option when they inquire about retaining me.

  • I’m with Greg on this. Anytime I get a call from someone who wants to start the process of child support, I tell them they should at first pursue it through DSS (for the reasons mentioned by Greg).

    A common misconception among a lot of callers is that an attorney has some magical ability to find the other parent when, a) the person calling has no idea where they are, and b) DSS has not been able to locate them.

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