Not pleading for a guardian (or discovery)

Posted Thursday, June 20th, 2019 by Gregory Forman
Filed under Family Court Procedure, Of Interest to Family Law Attorneys, South Carolina Specific

Last week I prosecuted a motion to appoint a guardian ad litem for the child at issue in a custody case (along with requests for other relief). The opposing counsel opposed this request. In support of his opposition he noted that my complaint had not sought a guardian as part of the relief I was requesting. Claiming I was “the guru” of family law–his words, not mine–he alleged that my failure to plead for the appointment of a guardian was fatal to my motion (interesting how I’m only a “guru” when opposing counsels disagree with me). Surely, he told the judge, I should have known I needed to request a guardian in my pleading if I wanted a guardian.

Actually, I don’t “know” this; in fact, I believe just the opposite. Early in my career, when I used older, more experienced, attorneys’ go-bys in drafting documents, I pled for guardians–and discovery–in my initial pleadings. I did so simply because that was what everyone was doing. However, as I’ve gained experience, I’ve tailored my procedures to what I believe are best practices. I don’t really care how everyone else is doing it if everyone else is doing it wrong. And to the extent everyone else is still putting procedural requests in their pleadings (in contrast to their motions) they are doing is wrong.

Rule 8(a), SCRCP is pretty clear on what belongs in a pleading, stating:

A pleading which sets forth a cause of action, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds including facts and statutes upon which the court’s jurisdiction depends, unless the court already has jurisdiction to support it, (2) a short and plain statement of the facts showing that the pleader is entitled to relief, and (3) a prayer or demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.

Procedural relief falls into none of those three categories. Rather a pleading only needs to state the basis for the court’s jurisdiction (I include venue information as part of jurisdiction), the facts that give rise to the cause of action, and the relief sought. In contrast, the rule of civil procedure addressing motions, SCRCP 7(b), indicates how one requests procedural or substantive relief:

An application to the court for an order shall be by motion which, unless made during a hearing or trial in open court with a court reporter present, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

Requests for procedural relief belong in motions, not in pleadings. If you want to look sharp, don’t include such requests in your pleadings.

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