In a pair of March 18, 2020 orders, South Carolina Supreme Court Chief Justice Donald W. Beatty cancelled all family court terms of court through May 1, 2020, and limited family court proceedings to “emergency matters.” I hear from other attorneys that, with this knowledge, some parents have begun refusing visitation or refusing to return the child to the custodial parent. Prior to the COVID-19 outbreak, I may have considered such actions to merit emergency relief–especially a refusal to return to the child to the custodial parent. Now, I’m pretty sure these actions don’t require emergency relief.

Litigants need to realize and attorneys need to consider that every court hearing requires attorneys, judges, litigants, necessary witnesses, and court personnel [deputies, bailiffs, court reporters] to gather together in a courtroom. This breech of social distancing requires substantial justification. Addressing the concerns raised when a child is abandoned by her caregiver, a parent incarcerated on a child support bench warrant, a parent abuses opiates with a child in his care, or a juvenile is charged with a violent crime, likely merit this breech. A parent simply refusing to return the child (or refusing visitation), or using marijuana in the child’s presence, likely doesn’t justify putting so many folks at risk of contracting or spreading COVID-19. With COVID-19 causing income loss for many, I suspect soon folks will be out of compliance with support obligations. I doubt failure to receive support merits emergency relief either.

That folks will use this knowledge of limited court access to violate family court orders is unfortunate. I suspect the family courts will ultimately come down very hard on parents or spouses who violated court orders simply because they knew the other party could not access the court system. The future use of criminal contempt sanctions to punish this behavior is completely appropriate.

But the COVID-19 era requires a different understanding of “emergency matters.” When an attorney seeks such emergency relief, that attorney is asking numerous folks to jeopardize their health and the public health to address the dispute. That’s something I’m not willing to do over mere visitation/custodial interference or failure to pay support.

COVID-19 is the first airborne global pandemic to take place since the development of specialized family courts in the United States. Never before has mandated social distancing interacted with the awesome contempt powers of family court visitation orders. Thus, I am getting numerous questions about complying with visitation orders from custodial parents who are considering refusing to send their children to the other parent or some third-party who has court-ordered visitation. I know my colleagues are getting similar questions.

Any attorney giving definitive advice on this topic is either much wiser or more foolish than I. We really cannot know how the family courts will resolve contempt petitions regarding COVID-19 related denied visitation. Different family court judges, and even appellate panels, may resolve the exact same fact pattern differently. Further, I am never comfortable advising clients to engage in actions that they believe put their children at risk but I am also unwilling to advise clients not to follow valid court orders. Ultimately my clients need to balance their tolerance for the risk of a family court contempt finding against the risk of exposing their children to COVID-19.

However, I have certain opinions on what the family courts will ultimately consider relevant in deciding whether to hold a parent in contempt for denying visitation. This is the advice I am providing all clients who ask these questions.

1) The mere fact that we are in the midst of a pandemic is not a basis to deny visitation.

2) If the custodial parent is denying visitation, put the basis of the denial in writing at the time the decision is made. That way, when that parent needs to defend a contempt petition, the basis for denying visitation will be clear and the client can avoid claims that it was simply a post-hock justification.

3) Offer additional and daily electronic visitation. Many family law attorneys are using zoom to video conference clients and I would suggest it for electronic visitation. It’s a free app and offers greater interactivity than Skype or FaceTime. Allowing such daily/frequent contact may defeat a finding of willfulness or reduce the contempt sanction.

4) If the custodial parent is denying visitation, offer reasonable makeup visitation in writing as part of the communication informing the other parent of the visitation denial. If the COVID-19 related concern is temporary, make the offer of makeup visitation at the time of the denial. If the concern is ongoing (perhaps the other parent works in a nursing home or is an ICU nurse), note that the other parent can have makeup visitation when the crisis passes.

5) If the custodial parent can get the other parent to agree to forgo visitation, preferably in writing, that parent is almost certainly safe from any subsequent contempt proceeding.

6) If the other parent or someone in their household has COVID-19, the custodial parent is almost certainly safe in denying visitation so long as that parent offers makeup visitation when they recover.

7) If the other parent or someone in their household has been exposed to COVID-19, the custodial parent is probably safe in denying visitation so long as that parent offers makeup visitation once the incubation period passes.

8) If the custodial parent simply refuses visitation because that parent believes the other parent is at greater risk of contracting COVID-19 and infecting the child, the custodial parent is on much less safe ground in denying visitation. The factors I think the family court will consider in whether to hold such custodial parents in contempt in are:

a. Did the custodial parent offer reasonable makeup visitation when denying the visitation.

b. Is the custodial parent practicing extreme social distancing for him or herself and the child. If the custodial parent is out and about, and the child is having play dates, I think the court is more likely to hold that parent in contempt.

c. Is the basis of the custodial parent’s denial consistent with that parent’s other actions. If that parent is equally high risk or exposing the child to others of equally high risk, the court is likely to hold that parent in contempt.

d. Has that custodial parent previously been held in contempt for visitation denial. I think the court will be more suspicious of such parents’ justifications.

9) The following is South Carolina specific. The family courts are closed to all but emergencies until at least May 1st. Even if the other parent objects to the denied visitation, the custodial parent still might be able to work out some alternative visitation that satisfies the other parent before he or she files a rule to show cause or gets that rule heard.

10) Something that’s not relevant yet but may become increasingly relevant as the pandemic proceeds is if the child or the other parent has recovered from COVID-19. My understanding is that if the child has recovered from it there may no longer be a health risk from exposure. Thus there would be no justification for visitation denial. Similarly, my understanding is that if the other parent has recovered from COVID-19, that parent no longer poses a risk from exposure (that parent’s other household members still might). Our subsequent knowledge of this virus may prove that recovery from COVID-19 does not eliminate the risk of exposure or transmission so this advice is provisional.

Stay safe.

Given the impact on the new coronavirus on South Carolina businesses, I’ve had more than one client ask me about paying court-ordered support obligations at a time when their income has withered. For clients with the savings to cover a few months worth of these obligations, I tell them to keep paying. For clients who don’t have such savings, I can only inform them that we are in a fluid and (at least for folks who are baby boomers or younger) unprecedented situation.

The legal doctrine of force majeure is typically found in contracts as a provision excusing performance due to an extraordinary event or circumstance beyond the control of the parties. The doctrine has only be cited twice in South Carolina case law, both involving contract disputes. I can find no reported cases anywhere in the United States addressing force majeure as a defense to contempt and only one unreported case, In the Matter of U.S. DOE – Rocky Flats Plant, 1993 WL 854273 (Colo.Haz.Matl.Waste.Mgmt.Div), that even mentions it.

What I assume this means is that case law on this issue is going to start developing throughout the United States some time in the next few years as folks who cannot meet their support obligations employ this doctrine to excuse their non-compliance. While work has slowed for most family law attorneys the past week, the general consensus is that when the quarantine ends business will boom. For family law attorneys who do appellate practice, force majeure claims may be part of that boom. And don’t even ask me to predict how our appellate courts will ultimately resolve this.

Late last month the family court issued a contempt petition against a client of mine in which the petition was a “notice” pleading, not a “fact” pleading. For those unfamiliar with the distinction, a notice pleading (typical in the federal courts as authorized by Federal Rule of Civil Procedure 8), simply provides the Defendant notice of the Plaintiff’s claims, while a fact pleading (required in South Carolina under its parallel rule of civil procedure), requires specific allegations of the facts that state the basis of the claim(s).

A simplistic example of how these two types of pleadings differ follows. Notice pleading: “Plaintiff is suing Defendant for negligence [details of said negligence forthcoming].” Fact pleading: “Plaintiff is suing Defendant for negligence because the Defendant’s negligence in running a red light caused a motor vehicle accident that caused injury to the Plaintiff.”

If the general rule of pleading in South Carolina requires facts, the specific rule of pleading family court contempt is even clearer on the need for factual allegations. Per Rule 14(c), SCFCR, “No rule to show cause shall be issued unless based upon and supported by an affidavit or verified petition, or unless issued by the judge sua sponte. The supporting affidavit or verified petition shall identify the court order, decree or judgment which the responding party has allegedly violated, the specific act(s) or omission(s) which constitute contempt, and the specific relief which the moving party is seeking. Such court order, decree or judgment shall be attached to the affidavit or certified petition.”

There’s excellent reason for the requirement that contempt petitions delineate “the specific act(s) or omission(s) which constitute contempt.” Per S.C. Code Ann. §63-3-620, “[a]n adult found in contempt of court may be punished by a fine, a public work sentence, or by imprisonment in a local correctional facility, or any combination of them, in the discretion of the court, but not to exceed imprisonment in a local correctional facility for one year, a fine of fifteen hundred dollars, or public work sentence of more than three hundred hours, or any combination of them.” The defending party in a contempt action runs the risk of leaving the court in handcuffs, led by law enforcement to the county jail. It is an essential element of due process that such Defendants receive full notice of the factual allegations that might lead to this result.

Unfortunately, family court judges are not 100% diligent in reviewing contempt petitions for compliance with Rule 14(c), SCFCR. I’ve had a few experiences in which a pro se litigant slipped a non-conforming contempt petition past a family court judge. In those cases, I’ve felt comfortable showing up at the contempt hearing seeking dismissal based on improper pleading. However last month’s contempt petition was drafted by an experienced attorney. It listed three ways my client was allegedly in violation of the court’s order without describing the specific acts for each violation. I did not want to show up at the contempt hearing raising the lack of specificity for the first time. The family court judges who are not 100% diligent about denying contempt petitions that lack specificity are the same judges who are not 100% diligent about following due process requirements–and the consequences of my client going to jail because we didn’t know what facts she was being required to defend was too great a risk for my comfort. Thus, I filed a motion to dismiss the rule (seeking to have the prosecuting party make his complaint more definite and certain as an alternative remedy). How to procedurally file this motion was a quandary that I still haven’t resolved to my satisfaction.

One option is to direct the motion to the judge who issued the rule as a motion to vacate the order (a rule to show cause is an actual court order directing a party to appear and defend the contempt petition). Since the rule to show cause has some of the qualities of a writ, one could possibly bring this motion under the authority of Rule 65, SCRCP. One could also bring this motion pursuant to Rule 60, SCRCP, however the notice provision for such motions to be heard is longer than the notice provisions of Rule 65. Further, neither of these rules of civil procedure clearly fits the rationale of such a motion.

The second option is to file a motion to dismiss the rule for failing to comply with the requirements of Rule 14(c), SCFCR. A motion brought by this procedure may, but is not likely to, be heard by the issuing judge. However Rule 14, SCFCR doesn’t describe the remedy to address improperly issued rules. The closest remedies are Rule 12(b)(4), SCRCP, for insufficiency of process, or Rule 12(b)(6), SCRCP, for failing to state a claim for which relief can be granted. Yet neither of those procedural rules are perfect fits for the rationale of such motions.

There are other procedural concerns. No matter how polite one is in filing such motions, no judge wants to be told that he or she issued a rule that failed to comport with due process. Thus bringing this a motion to vacate to the issuing judge runs risks of angering a judge. However, “[t]here is a long-standing rule in this State that one judge of the same court cannot overrule another.” County Dept. of Social Services v. Father, Stepmother, and Mother, 317 S.C. 283, 454 S.E.2d 307, 310 (1995). Bringing this as a motion to dismiss to a different judge may cause the second judge concern that he or she is being asked to overrule the initial judge

I finally decided to bring the motion as one to dismiss, pursuant to the authority of SCFCR 14(c). The extent that the opposing party was required to plead all factual allegations he intended to prove a the contempt hearing, I was granted relief. I remain open to persuasion that there are other, better, methods of addressing insufficient contempt pleadings but I am 100% certain that one should never allow a client to defend a family court contempt petition without having substantial advance notice of the factual allegations that might land him or her in jail.

By the same process that causes attorneys’ boilerplate to grow over time–they borrow “good” ideas from other attorneys but never weed out redundant or obsolete clauses–the list of restraining orders that family court judges impose on parents continues to grow.

Since many local family court judges treat violations of these restraining orders as criminal contempt–and send parents to jail as a sanction–this becomes even more problematic. The fear of living under such well intentioned but poorly devised restraining orders is not the primary reason I remain married to my baby mama–it does, however, provide strong incentive. I’d be violating these orders routinely.

A recent custody case provides numerous examples of such ill conceived restraints:

Both parties shall refrain from exposing each minor child to any immoral, unlawful, or otherwise inappropriate conduct, circumstances, or places.

If the judge who issued this order knows what it intends, I applaud him. Shielding a child from “immoral” or “unlawful” “conduct,” likely limits that child to watching movies or television shows, or reading books, aimed at toddlers. The Bible, a favorite book of South Carolina Family Court judges, is filled with immoral and inappropriate conduct. That God is often smiting folks for such conduct, or Jesus preaching against such conduct, would not obviate the violation contained by this restraint.

Further, many families have members who engage in immoral or inappropriate conduct. Is that child to be shielded from his or her extended family? Unless one is willing to risk jail, I assume the answer is yes.

Finally, is is the court’s intention to hold parents in contempt for driving over the speed limit or doing California Stops with the children in their vehicle?  If this is the case, private investigation has tremendous growth potential within our state.

Neither party shall expose each minor child to violent conduct.

Again the Bible–filled with violent conduct. Practically any non G-rated movie contains some violent conduct. The Star Wars movies, favorites of the grade school crowd, feature numerous instances of mass genocide. I don’t believe family court judges intend to incarcerate parents for allowing their children to read the Bible–however they need to draft better restraining orders.

Neither party shall expose the minor children or allow the minor children to be exposed to sexually explicit conduct, language, television, videos, movies, book, or other material of any kind or allow the minor children access to such material through unsupervised use of computers, smart phones, or other technology that may become commonly used in the future.

You can now go to jail if your daughter listens to Beyonce.

All parties are retrained against allowing the child/children to see or be exposed to age inappropriate movies, computer access or websites, games or other such material or forms of entertainment and shall take all reasonable precautions against the same. In no case shall the children be exposed to any X-rated or pornographic material or R-rated movies.

There are currently 66 family court judges–including retired but active judges–in South Carolina. Any of those 66 could eventually be deciding what is “age inappropriate.” Given that South Carolina is a conservative state, I assume most of these judges decry the “nanny state.” Those same judges will be your child’s nanny.

Age inappropriate media can be a lovely bonding experience with one’s children. I know many young boys who relish playing violent video games with their fathers, often to their mother’s disapproval. Parents are entitled to have differing views on a child’s exposure to media.

My wife and younger daughter bond over cooking competition shows, fashion competition shows, and shows in which hugely entitled women yell at one another. I don’t think these shows are appropriate for any age. In return, my daughter and I bonded over movies entailing general mayhem, and specific zombie apocalypse. If a family court judge wouldn’t take his tween daughter to those movies, that’s his decision to make. But he shouldn’t make that decision for my daughter.

Another problem with this restraint is that it makes a parent responsible for any exposure by the child to such materials. Teens have been known to search out R-rated or pornographic materials on their own. The only way to comply with that restraint is to put blocks on a child’s internet access. Some parents may be willing to force this restriction. Most–for good reason–won’t. They shouldn’t risk jail for not doing so.

A restraint that “Neither party shall allow the minor children to watch or be exposed to NC-17 or X-rated movies or pornographic materials” should suffice to prevent harm. Outside of this restraint parents ought to be allowed to determine what media their children consume.

Both parties shall exercise such caution and care to keep each minor child in a safe environment.

Trampolines, swimming pools, and bicycles are now off limits. Accidental discharge of guns also kills hundreds of children every year. “South Carolina family court judge denies parents Second Amendment rights” is a headline I long to read. Car accidents kill numerous children every year. You can no longer raise your children in the suburbs. But the cities aren’t safe either. Move to the country and have them ride donkeys to school (but donkeys have been known to kick).

The only way to comply with this restraint is to wrap your children in bubble wrap. Please make sure they don’t choke on the plastic.

All parties are restrained against having any form of physical or verbal confrontation or allowing another to do so in front of the children.

I have no issue with the physical confrontation restraint. I have no issue with a restraint on verbal confrontations between the parties around the children (although I suspect few children from intact families never see their parents argue). But a restraint that prevents parents from getting into any verbal confrontations with others around their children is unworkable. Humans don’t always agree. One method of resolving disagreement is to argue–i.e., verbal confrontation. Compared to other methods of handling disagreement, it’s one of the better ones.

Perhaps in heaven everyone will get along. Here on earth, people have disagreements. I don’t think family court judges intend to put parents in jail if their children observe these disagreements. However they should draft better restraining orders.

Neither party shall expose the minor children to romantic companions, unrelated by blood or marriage, between the hours of 11:00 p.m. and 6:00 a.m.

I’ve previously blogged about this restraint’s overbreadth. While the family court’s continued belief that if children aren’t exposed to parental non-marital cohabitation they will somehow remain virgins until marriage is almost charmingly naive, this restraint still fails what I call the Jane Austin test. Miss Austin’s terribly upright aristocrats regularly stayed in the same home as someone to whom they were romantically attracted. In fact, that is how they conducted their courtships. If such courtship behavior is proper in Jane Austin’s world, it should pass muster in 21st century South Carolina.

I’ve had numerous recent cases in which clients could not bring romantic companions to family reunions even if numerous other family members would be present in the house, and even if the client did not share a bedroom with the romantic companion. Further because the restraint isn’t limited to activities within a bedroom, it restrains a parent from bringing the child and the romantic companion on late night (or early morning) activities.

Since South Carolina still loves this restraint, I try to draft it to make the limitation explicit to “within a residence.” To allow romantic companions at family events, I also like to add that, “This restraint does not prohibit either party from bringing a romantic companion to an event that is chaperoned by third-parties so long as that party and his or her romantic companion do not share a bedroom.”

Neither party shall expose the minor children to the use or possession of illegal drugs or abuse of alcohol or prescription drugs.

It might be possible to avoid exposing children to “the use or possession of illegal drugs,” but you won’t be taking those children to many rock concerts. As for not exposing children to the “abuse” of “prescription drugs”–let’s hope your children have no desire to see their cousin who occasionally takes someone else’s Ritalin or their aunt who may be addicted to opiates. It’s unclear whether you can even send that child to a South Carolina high school (or even a middle school).

But if your children are going to avoid being exposed to the “abuse of alcohol” you need to move to Saudi Arabia. Sporting events: someone in the stands is likely to be abusing alcohol and your child can’t be present. Concerts and performing arts: there’s a drunk in every crowd. Weddings: now off limits. And if you’re eating with your children at a nice restaurant and someone at a nearby table has a few too many: I assume you’re supposed to ask for the check and leave immediately.

I don’t take issue with a restraining order that prevents the child’s parents or caregivers from doing these things. But a restraint that prevents the child from be exposed to these things at all is unworkable in 2017 America.

Each party shall be required to give the right of first refusal to care for the minor children to the other before arranging a babysitter or other caretaker for the minor children for periods longer than one hour, except that this provision shall not restrain the children from spending time with their friends, away from a parent.

I’ve previously written about my dislike of the right of first refusal. Folks going through contested custody litigation need to establish distance. Granting a right of first refusal enables them to be in the other’s business and hinders the separation process. A court imposed right of first refusal is simply a well-intentioned method of prolonging and creating conflict.

Neither party shall use or allow the use of vulgar, profane, demeaning, or violent language in the presence of the minor children.

Well damn, I hope these parents never stub their toes or bang their shins. These same parents better keep their discussions of politics and other hot topics lofty–can’t be referring to anyone as an idiot with the children around.

Again, a restraint against using such language towards the children or the other parent might be useful. However, a blanket prohibition against such language is unworkable. Even a recent New York Times article makes The Case for Cursing as a method of dealing with pain and frustration.

If we are going to hold parents in contempt for certain behaviors around their children we need to make those restraints as clear as possible and as narrow as necessary. This becomes even more important if we are going to incarcerate parents for such violations.

The current status of such restraining orders in South Carolina’s family court–vague and overbroad–is bad and getting worse. What appears well intentioned is frankly insane.

A few days ago I prosecuted a contempt action. The proof for one of the allegations of contempt was very document intensive and mathematical–reimbursement for unpaid medical expenses–and another was heavily reliant on exhibits. I figured that establishing violations would be easier by having my client explain the records through direct testimony rather than by cross-examining the opposing party (and likely have him argue with me on each exhibit).

Thus, atypically, I completed my presentation without calling the Defendant in my case-in-chief. Opposing counsel, having read a very recent blog on involuntary non-suits in family court, then moved for a dismissal of my client’s claims, arguing that I had failed to establish willfulness–an essential element of a contempt claim and an element that must be proven by clear and convincing evidence. The judge denied the non-suit request, opposing counsel called his client to the stand, and his client proceeded to give testimony–largely on his own direct examination–that not only established willfulness but established criminal contempt–which requires proof beyond a reasonable doubt. In his ruling, the judge stated that I had not clearly established willfulness in my case in chief but that the Defendant’s own testimony established his willfulness. Had the judge believed I had the burden of proof on willfulness, he possibly would have granted the Defendant’s non-suit request.

That proceeding inspired this blog. Is the willfulness element of contempt an essential part of the moving party’s case-in-chief or is lack of willfulness an affirmative defense that a defending party must demonstrate. In most cases the moving party has the burden of proof. Yet case law and court rules demonstrate that on the willfulness issue for contempt the burden shifts to the defending party.

In a proceeding for contempt for violation of a court order, the moving party must show the existence of the order and the facts establishing the respondent’s noncompliance. The burden then shifts to the respondent to establish his defense and inability to comply with the order.

Brasington v. Shannon, 288 S.C. 183, 341 S.E.2d 130, 131 (1986) (citations omitted).

That case law was codified in the following section of Family Court Rule 14(g):

At the contempt hearing, the moving party must establish a prima facie case of willful contempt by showing the existence of the order of which the moving party seeks enforcement, and the facts showing the respondent’s noncompliance. The moving party shall satisfy the burden of proof required by law for the specific nature of contempt before the court. Once the moving party establishes a prima facie case, the respondent is entitled to present evidence of a defense or inability to comply with the order. If requested, the Court may allow reply testimony.

While not explicit on whether the willfulness issue is part of the burden of proof of the moving party or an affirmative defense of the defending party, the authority above shows that the only burden the moving party has to establish contempt is the existence of the court order and the facts showing noncompliance. The responding party then has the burden of establishing the inability to comply with the court order (e.g., lack of willfulness). While not as explicit as one might hope, it appears that lack of willfulness is actually an affirmative defense to claims of contempt. The family court judge was correct not to grant the non-suit despite his believe that I failed to provide clear and convincing evidence of willfulness in my case-in-chief.

A few months ago my mentee observed me enforce my attorney fee award through a family court contempt proceeding. Expecting me to prove the contempt through my client’s testimony, she was surprised when I testified first and asked my client very few questions when I called him as a witness.

The method attorneys typically use for enforcing fees awards is to call their client to the witness stand and ask their client about the opposing party’s non-payment and the attempts to collect payment. The problem is the client has little or no first-hand knowledge of these collection attempts. Typically, when attorneys are owed fees from an opposing party, the attorney handles collection attempts. Written communications or conversations to collect fees are most often between the attorney and the opposing party. Having the client testify about the attorney’s collection attempts is awkward. The client is likely merely repeating hearsay from the attorney, and probably lacks the detailed knowledge the attorney has. On cross examination the client may get details wrong and damage the case.

Thus, I typically handle most of the testimony at such fee enforcement proceedings. S.C. Code § 20-3-125 specifically authorizes that any family court “attorney whose client has been awarded an attorney fee by the family court may petition the family court for the circuit in which the order was filed to enforce the payment of such fee.” Moreover, South Carolina’s Rule 3.7 of the Rules of Professional Conduct specifically authorizes attorneys to be witnesses when, “the testimony relates to the nature and value of legal services rendered in the case.” Under this rule I have always been able to testify regarding my attempts to collect fees on my client’s behalf.

If available, I try to have my client appear at such contempt proceedings to testify that he or she would owe me fees if the other side does not pay what is ordered (or that he or she would receive a refund if the other side paid as ordered). I do this because Calhoun v. Calhoun, 339 S.C. 96, 100, 529 S.E.2d 14, 17 (2000), held a pro se litigant could not recover attorney’s fees because “a pro se litigant, whether an attorney or layperson, does not become liable for or subject to fees charged by an attorney.” The family courts have interpreted this to mean an attorney cannot seek his or her own fees on collection efforts if those fees are solely for that attorney’s benefit.

The few times I have proceeded with an attorney fee collection rule without my client’s consent (because the other side owed me fees for work that my client had not paid me for but did not want me collecting either) the court has denied my fee requests for the collection effort. Thus, it is useful to have the client confirm the desire to collect fees. However no other testimony from the client is really needed. Further, if the client is unavailable that testimony is unnecessary so long as the attorney can truthfully testify that the client supports the collection effort.

Having one’s client testify about fee collection efforts when one can do so oneself is inefficient and awkward. It’s easier for the attorney to take the stand.

A common dilemna in family law is enforcing a support order when the obligor no longer resides in the issuing state. There are two reasonable ways of resolving the matter. One option is to enforce the order in the issuing state and, if necessary, register the resulting enforcement order in the obligor’s state of residence. The other option is to simply register the support order in the obligor’s state of residence and enforce it there. One can shorthand these options as “enforce and then register” and “register and then enforce.” Often it will be unclear which is the better option until litigation is well underway. However by understanding the obligee’s goals and the risks with each option, one can guide the obligee to an intelligent decision on the options.

The major risk of initially bringing enforcement proceedings before registration is that the obligor may simply fail to appear at the enforcement hearing. This will almost always result in the obligor being held in contempt, and likely result in a bench warrant being issued for the obligor’s arrest. However, it will require a second proceeding in the obligor’s state of residence to actually collect past-due support. The trouble and expense of two proceedings in two states can be prohibitive, especially for a litigant who isn’t receiving support.

In contrast, a support order can be registered for enforcement in the obligor’s state of residence through the mechanisms of the Uniform Interstate Family Support Act (UIFSA). UIFSA has streamlined procedures for registering and enforcing foreign support orders, and each state has a support collection services government agency that will assist in the registration and enforcement process at no or relatively low cost (if not as aggressively or quickly as a private attorney might).

There are a number of factors that can weigh in favor of enforcing before registering. If one suspects the obligor will return to the issuing state for the enforcement hearing, there won’t be a need to register the resulting enforcement order in the obligor’s state of residence. In such circumstances, enforcing in the issuing state is the best option.

Also, there may be times in which the obligee knows the obligor will want to be physically present in the issuing state in the near future. In those circumstances, if the obligor doesn’t appear for the contempt hearing, a bench warrant will likely issue. That bench warrant can be enforced when the obligor returns–alleviating the need to register the enforcement order in the obligor’s state of residence. Sometimes the obligee would be happy to make the obligor a fugitive from the issuing state–such as when the obligee thinks the obligor’s visitation with their children is problematic. Turning the obligor into a fugitive may be very attractive even if the order doesn’t get enforced immediately.

If the obligee still lives in the issuing state, the convenience of starting the litigation in the state of the obligee’s residence can be significant. Enforcing a support order requires more time and skill than merely registering a foreign support order for enforcement. This is especially true when there might be factual disputes as to the amount of past due support, as the resulting order will indicate the amount due and the manner in which that amount is to be paid and will require little interpretation to enforce. Where support is paid through the court, and there is a court record showing the out-of-compliance amount, register and then enforce becomes a more attractive option.

Further some states are more aggressive than others in enforcing support orders. South Carolina is particular aggressive in its use of contempt sanctions, so, in my practice, this is almost always a factor in favor of seeking enforcement in South Carolina before registration elsewhere. However an obligee seeking to enforce a foreign support order against a South Carolina resident may be better off registering the order here and then enforcing it.

Few of the above factors are necessarily determinative by themself. However, discussing them with the client and weighing them out can help determine whether the better option is to register then enforce or to enforce and then (if necessary) register.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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