South Carolina court system partially reopens for business

Posted Sunday, April 5th, 2020 by Gregory Forman
Filed under Family Court Procedure, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

Late Friday (April 3, 2020), the South Carolina Supreme Court issued an order that will partially reopen the court system for business while continuing to greatly limit public access to the courthouse. While it does not appear that contested trials will resume during this quarantine period, compared to the March 18, 2020 order this new order greatly expands the matters the family court may permissibly handle. The items in this new order that should be most of interest to South Carolina family law attorneys and litigants are as follows:

Section b(2) authorizes non-jury trials to proceed “ if the parties consent, or the matter involves an emergency or other circumstance warranting immediate resolution.” This section allows for trials to be conducted via remote technology and limits who may appear for in-person trials. In- person hearings will be conducted “[o]nly if a judge determines that the hearing cannot be conducted adequately using remote communication technology and the matter involves an emergency or other circumstance warranting immediate determination.” This order contains a number of technical rules on conducting and preserving testimony for these remote hearings that anyone considering such a hearing should review.

Section b(4) allows motions [including, one assumes, motions for temporary relief] to be addressed without a hearing. “If, upon reviewing a motion, a judge determines that the motion is without merit, the motion may be denied without waiting for any return or other response from the opposing party or parties. In all other situations except those where a motion may be made on an ex parte basis, a ruling shall not be made until the opposing party or parties have had an opportunity to file a return or other response to the motion. A trial judge may elect not to hold a hearing when the judge determines the motion may readily be decided without further input from the lawyers.” If such a hearing is held, it is likely to be conducted via electronic means.

Section c(16) authorizes certification in lieu of affidavit. If a statute, court rule or other provision of law requires an affidavit to be filed in an action, the requirement of an affidavit may be satisfied by a signed certification of the maker stating, “I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment by contempt.” Many family court litigants were having difficulties getting necessary documents notarized. This section allows them to maintain social distancing while executing affidavits and financial declarations.

Section f(2) allows for family court agreements to be approved without a hearing. Typically, the family courts had been approving temporary agreements without hearings via consent orders. The provisions of Section 2(f)(A & B) would appear to require the signature of the attorneys, the guardian ad litem (if there is one) and the parties to approve any general order or temporary order. Past procedure had the court approving such orders without the parties’ signatures if that party was represented and their attorney signed in their stead. This order may impose an additional requirement on the number of signatories before getting such orders approved.

Section f(2)(C) sets the procedure for approving final family court agreements. The Charleston County family court was already waiving the hearing requirement to approve such agreements but this order sets statewide procedures. Both the agreement and the consent order needs to be signed by the attorneys and the parties. There must be an updated financial declaration for each party. If a guardian has been appointed and the agreement involves children, the guardian must submit an affidavit or certification addressing the best interests of the children. Finally, the parties must provide “[w]ritten testimony of all parties in the form of affidavit or certification addressing and answering all questions the Family Court would normally ask the parties on the record.” The list of required information largely tracks the affidavits in lieu of appearance that family court attorneys have long used to get agreements approved when a party cannot attend the final hearing. However attorneys should review Section f(2)(C)(iv) and revise their form affidavits to conform with this order.

Finally, Section f(1) authorizes the family court to grant uncontested divorces without a hearing. This subsection sets forth the requirements to obtain a divorce and includes additional requirements if either party is seeking a name change as part of their divorce.

Still unclear is how to address the constant visitation denials that the pandemic is causing. With very limited access to the family courts, there was little one could do for parents who were being denied visitation. Whether the family courts will address such visitation denials via hearings, whether such hearings will be conducted in-person or remotely, and whether it would require filing a contempt petition to obtain such a hearing, is something only time and experience will demonstrate.

Since the March 18, 2020 order issued, the family courts were not granting divorces and the only hearings taking place involved emergencies–typically child protective services or protection from domestic abuse matters. This April 3, 2020 order sets statewide procedures to approval final agreements and authorizes uncontested divorces. It would appear to allow for more family court motion hearings, including motions for temporary relief. While I don’t see multi-day divorce or custody trials resuming until quarantining ends, and I am uncertain whether the family court will want to conduct hearings involving custody or support issues without hearings, family court attorneys and litigants have numerous options that were not available the previous two weeks.

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