Sealing records when private custody cases reference past child protective services involvement

Posted Thursday, May 24th, 2018 by Gregory Forman
Filed under Family Court Procedure, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

While the general principal is that court records are open to the public, information from child protective services cases are not. Thus conflicts develop between the general rule of open records and the prohibition against revealing child protective services information. Twice in the past month I have been involved in a private custody case that necessarily referenced past child protective services involvement for at least one party. While this may have occurred in my previous 25 years of practice, I don’t specifically recall it happening in any particular case–likely because I was oblivious to the potential dangers of revealing such information in public records. My eyes are open now.

Some states, South Carolina being one of them, have statutes making it a criminal matter to reveal to the public information contained in child protective services files. South Carolina’s Rule of Civil Procedure 41.1 notes that “South Carolina has a long history of maintaining open court proceedings and records.” With the limited exceptions of information referenced in SCRCP 41.2, information from custody cases is available to the general public. However information from child protective services cases (along with termination of parental rights and adoption cases) are not.

Recently, I was the guardian ad litem in an uncontested custody case in which a parent was trying to regain custody of the children. My investigation focused on whether that parent had met the conditions of a prior DSS treatment plan. My report necessarily reference the existence and contents of that treatment plan. When it was time to issue my final report I was reluctant to file it with the court due to these privacy concerns. I suggested that this parent’s attorney file a motion pursuant to SCRCP 41.1 to have my report filed under seal.

When we attended the custody hearing, the hearing judge not only approved the request to seal my report, she indicating that such sealing was required. In her view S.C. Code § 63-7-1990(A) would have made it a criminal act to file my report unless it was under seal. That subsection reads:

All reports made and information collected pursuant to this article [the Child Protection code] maintained by the Department of Social Services and the Central Registry of Child Abuse and Neglect are confidential. A person who disseminates or permits the dissemination of these records and the information contained in these records except as authorized in this section, is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand five hundred dollars or imprisoned not more than one year, or both.

There are numerous private custody modification cases in which the prior final order resulted from a child protective services action. One cannot analyze whether a substantial change of circumstances has occurred (which is the standard for modifying child custody) without knowing what the circumstances were that led to the child protective services action being brought and how that case concluded. However, one should not be referencing information from these cases in public documents. Whenever a child protective service case is relevant to a subsequent custody case, best practice is to seek approval of the court to file any documents referencing that case information under seal.

One thought on Sealing records when private custody cases reference past child protective services involvement

  1. Sandra durham says:

    That isnt right because my daughter lost her children and she’s not allowed to open the file up she said she didn’t sign her children away

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