Supreme Court remands for new custody trial based on stale record

Posted Wednesday, November 23rd, 2022 by Gregory Forman
Filed under Appellate Procedure, Child Custody, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

On November 23, 2022, the South Carolina Supreme Court partially granted a writ of certiorari, and remanded the case of Rossington v. Rossington, 438 S.C. 63,  882 S.E.2d 170 (2022), for a new trial de novo due to a stale record.  In doing so it noted:

This action was commenced in 2017. The matter of physical and legal custody of the parties’ minor child has been in contention for almost six years—since the child was two months old. We regret the delay caused in part by our state’s court system and acknowledge considerable changes and milestones could occur for a minor child during such a substantial delay that may alter the determination of an arrangement created in the best interests of the child. Indeed, it is more than likely the amount of time that has passed since the family court’s order has resulted in a stale record incapable of reflecting facts and circumstances from which the current best interests of the child can be determined.

As part of the same November 23, 2022, advance sheet the Supreme Court issued a November 17. 2022, order requiring that custody appeals be expedited.

I currently have a number of family court appeals in which the final order issued in 2020 (or even earlier) but oral argument in the Court of Appeals has not been set.  Some of the delay is due to attorneys needing more than 30 days to draft initial briefs but a lot of the delay is due to gaps in time setting oral argument.  There have also clearly been delays in resolving custody appeals due to the time the Supreme Court took addressing certiorari petitions.  

The matter of custody appeals taking years to resolve seem to be ending.

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