Published in South Carolina Lawyer, September 1998

In most custody cases, funds will be limited. Potentially meritorious cases can be lost simply because the client lacks resources to fully develop the facts. What follows are helpful strategies for litigating difficult custody and visitation cases which an inexperienced family law practitioner can utilize while holding costs down. These strategies are also useful for court appointed abuse and neglect or termination of parental rights cases.

1. Teach your client the law on custody at the initial consultation to develop reasonable expectations from the beginning.

For your next final order in a custody case, work up the conclusions of law, developing a summary of important South Carolina cases on the standards for awarding custody. Save these conclusions and add to them whenever a new case changes or adds standards for setting custody. When meeting with potential clients, use this file as a basis to clarify goals and expectations. The initial consultation should provide a theory of the case, help you and the client determine if the objectives are realistic and create a framework for developing the facts you will need to prove to prevail.

2. Don’t file a change in custody action when what your client really wants is to enforce the existing custody order

A custody action takes months or years to get to trial; a rule to show cause can be heard within a month or two. If your client seeks a change in custody based on some aspect of the other parent’s behavior, you may be better off filing a rule to show cause, even though it is unlikely to result in a change of custody. A rule presents an opportunity to get into court while the behavior is still current. It is an inexpensive and effective method of documenting the other parties’ non-compliance with a court order. If the other parent has enough sense to change the offensive behavior (either before or after the rule to show cause), it prevents your client from getting involved in a lengthy, expensive custody battle that he or she is unlikely to win. If, after being found in contempt, the other parent does not change the offensive behavior, it sets up a basis for a change in custody.

Often, an incremental approach succeeds where an all or nothing approach will not work. A father who has no relationship with his child and is concerned about the mother’s behavior will be more successful seeking visitation and putting restraints on the mother’s behavior than seeking custody. After this father has established a strong relationship with the child, or if the mother’s behavior does not change, he is then positioned to seek custody.

3. Do not file your initial pleading until you have determined how you are going to prevail and continually re-evaluate your strategy.

Before preparing the initial pleading, ask yourself how you will prove your client deserves what he or she is seeking. You should already be thinking about the types of witnesses who will prove your case. Is your client’s basis for custody that she was the primary custodial parent? That your client is an outstanding parent, the superior parent? That the other parent is a disaster? Different witnesses will be needed under each scenario.

Because facts are continually in flux, make sure you periodically re-evaluate strategy. If the other parent’s improved behavior makes what was once a very winnable case a difficult if not impossible case, inform your client. Planning a good exit strategy from a difficult case often takes more legal skill than winning an easy case. Recognize when a slow tempo helps your case (e.g., when you are seeking custody but need time to establish a substantial relationship between your client and the child or need time to let the other parent slip-up) and when a faster tempo is helpful (e.g., your basis for custody is the other parent’s possibly temporary unfitness).

4. Always recognize (and remind your client) that a custody case is one of those rare lawsuits when it is legitimate to change the facts.

In a custody case, the relevant issue is the parties’ parenting abilities at the time of trial, not at the time of filing. Explain to your client what the court expects from a custodial parent. Encourage behavior that will help your client win custody and discourage behavior that hurts the case. Issues that the family court judge might consider disturbing might seem acceptable to your client. If you do not educate your client on the expected behaviors, your client might be educated by an indignant judge — at the time of trial.

5. Have your client develop the witness information and use the witnesses’ written statements as the starting point for their affidavits.

Upon being retained, provide the client with a memo explaining how to gather witness statements, listing the types of people you want to get statements from and what you want in those statements. This memo should ask these witnesses to provide their name, address and home and daytime phone numbers, a brief biography, an explanation of how they know your client (or the parties) and a detailed description of what they know.

Tailor the witness list to what you are trying to prove. In representing a recovering alcoholic, an affidavit from the employer is a strong statement of sobriety. In a change of custody case involving school-age children, statements from school teachers become vital. Let the client knows what types of witnesses you want to hear from and let the client chose and locate the witnesses.

Once you receive these statements, you should phone the witness and flesh out the details of the statement. From the statement and conversation, you should be able to produce a detailed affidavit which you can then review with the witness while on the phone. Then you can fax or e-mail the affidavit and ask the witness to either mail it back or call for pick-up after the statement has been signed and notarized, without making witnesses come to your office.

6. Educate your witnesses and talk to the other side’s fact witnesses.

When talking to witnesses for the first time, ask them if they have ever been involved in a custody case. If they have not, explain the procedure and why you need their affidavit. Let them know that most cases settle and, if the case settles, they will not need to come to Court. Explain that they may hear from the guardian and opposing counsel and that their cooperation with the guardian is vital to your client. Finally, explain how you think the information they have is important to your client’s case. Let them know what you are expecting to prove with their affidavit and, if necessary, their testimony. This encourages witness cooperation and provides you with better information.

As soon as you get an affidavit or name from the opposing party’s fact witness, see if you can get an address and phone number (often your client will know or they will be listed in the phone book) and call those witnesses immediately. Generally you will get the same damaging information that is already described in their affidavit, but you will have an opportunity to uncover bias or other methods of impeachment. Occasionally, you will get information (the part of the story that other side omitted from the affidavit) that is so helpful you will call this witness as your own at trial.

7. Make the Guardian Ad Litem’s job easy.

In dealing with the guardian, your goal is to have the guardian recommend that your client get custody. As soon the guardian is appointed, send him or her a letter enclosing all pleadings, affidavits, motions and orders, along with a list of witnesses’ names, addresses, daytime and home phone numbers. Never ask the guardian to speak to a witness you have not spoken to first. Spell out the steps you would like (not demand) the guardian to undertake in the investigation. If you believe the guardian needs to do the investigation in an expedited fashion, explain why and try to agree upon a date for making preliminary recommendations. After the guardian has done a preliminary investigation, ask about any concerns with your client’s parenting abilities so that they can be addressed. Further determine whether there is anything additional the guardian needs. Unless the guardian’s investigation will require an element of surprise, courtesy copy your correspondence to opposing counsel as this helps the guardian preserve an appearance of neutrality.

Educate your client on the guardian’s role. The client’s job is to convince the guardian that he or she is a good and concerned parent. Instruct clients to cooperate with the guardian and ask the guardian to inform you if your client is not cooperating.

Cooperating with the guardian greatly improves the chances that the guardian will take the time to understand, investigate and appreciate your client’s position. Even if the guardian does not recommend for your client, the guardian should have a basis to testify regarding your client’s good attributes. Finally, if the guardian is completely remiss in the investigation, you can impeach on the guardian’s failure to fully investigate the case.

8. Know the child’s pediatricians, teachers, coaches, day care providers and the parents of your client’s child’s friends.

These are the people whose testimony will win or lose your client’s case. The pediatrician knows if the child is developing appropriately or endangered. If your client has a history of making all or most of the pediatrician visits, it establishes your client has been substantially involved in the child’s life. Teachers, coaches and day care providers see the child on a day-to-day basis. If your client has custody and they credit your client for the child’s doing well, you have a convincing argument for the status quo. If the other parent has custody and these witnesses think the child is doing poorly or below potential, they provide a strong basis for changing custody.

Parents of your client’s child’s friends are also great witnesses. When respectable, responsible parents let their children play at your client’s house, they are making strong (if unspoken) statements of your client’s parenting ability. If these parents have allowed your client to take their child along on day-long or even overnight trips, you have tremendous evidence of trust in your client’s parental ability.

9. Subpoena, Subpoena, Subpoena.

Subpoenas (SCRCP 45) do not fall under the family court’s general prohibition on discovery (SCRCP 26-37). At the beginning of the case, prepare a standard records subpoena for that case. To subpoena records, indicate the name of the person being subpoenaed and the records you are seeking, put the due date three weeks ahead and serve via certified mail (courtesy copies to opposing counsel, of course). It costs five dollars, takes five minutes and, in a family court case, is the most effective method of getting damaging information regarding the opposing party. Subpoenaed work or school records are excellent evidence of a parent’s responsibility (or lack thereof) and time commitments. If you are concerned the opposing party is going to misstate income on the financial declarations, subpoena the employer’s wage records (to the temporary hearing, if necessary, if you cannot otherwise provide the proper two week’s notice). Obtaining the opposing party’s medical or psychological records (no doctor-patient privilege in South Carolina) is vital if that party’s physical or mental state is something the court should consider. Bell South keeps a log of every local or long distance incoming or outgoing call within the past ninety days and will provide a five day history of that ninety day period. Knowing who the other party is phoning and how long they are talking can provide fruitful information. Subpoenaed bank statements and credit card statements are almost always better sources of the other party’s financial information than requests to produce or depositions.

10. Before the Temporary Hearing determine what discovery you need and have the order of discovery narrowly tailored to meet those needs.

Rule 25, SCRFC, specifically authorizes the Court to put limitations upon discovery. As subpoenas are generally the best source of untainted information regarding the opposing party, decide what additional discovery you will need and limit discovery accordingly. If you know the depositions you want to take, list them in your discovery motion. It is less expensive to re-petition the Court for more discovery if you later determine more will be needed, than to commit to unlimited depositions.

Get the name of the bank and the account numbers and subpoena the records rather than seeking them through requests to produce. Since one cannot prepare for a custody case without knowing the identity of the opposing party’s witnesses, seek discovery, but on terms favorable to your client. Identify the opposing party’s witnesses via interrogatories and phone them rather than taking depositions. If witnesses will not talk, it is still less expensive to get a private investigator to go to their homes to confirm that fact (thereby making them clearly biased witnesses) than taking depositions.

Where the other party has greater financial resources, unless discovery is limited, you may find yourself spending your time, and your client’s money, answering substantial interrogatories and defending numerous depositions rather than advancing your client’s case. Seek limited discovery: standard interrogatories and depositions limited to parties and out-of-state witnesses.

11. The weekend before trial meet with every one of your witnesses, in person at your client’s house or with your client present.

The weekend before trial, meet with every single witness who will meet with you (if you have not served this witness with a trial subpoena, it is an opportune time to do so), using the client’s house as the central location for witness preparation. A few weeks before trial, give your client the witness list and have him or her schedule the witnesses to come over. During these interviews, follow the same format as in seeking information through witness statements but at a much greater level of detail, taking copious notes. Those notes provide an organized outline for direct examinations. In the stressful environment of a custody trial, being able to pull out detailed outlines of the testimony you wish to elicit from your witnesses is an enormous relief.

By doing these interviews right before trial, you obtain the most current information regarding your client and the child (and, sometimes, the opposing party). By making it convenient for the witnesses, you are more likely to get detailed information while making the witnesses comfortable with testifying. Having your client present allows them to jog each other’s memories. Much of the helpful testimony will come from information obtained during that lengthy weekend.

12. Draft and serve a proposed final order on all substantial contested issues before the judge issues a ruling.

Instead of doing a closing argument, ask the Court if it would accept a proposed order. Then, within the weekend following trial, draft an order that does a reasonably good job of describing both sides’ testimony and evidence, and provides a sensible basis for a ruling should the judge rule in your favor.

Presuming your client prevails, you will need to draft an order anyway, so you might as well draft it while your memory regarding the testimony is still fresh. The pre-ruling proposed order, sent to the judge and opposing counsel, serves other useful purposes. It highlights the helpful testimony that you hope, but cannot be sure, the judge will remember. If there were any unexpected or confusing issues of law, it provides an opportunity to present your research before the judge is locked into a position. It makes sure the judge understands the significance you place on each witnesses’ testimony. Finally, it provides the judge a framework for deciding custody in your client’s favor in a more logical, refined and accurate manner than a closing argument could.

Even if you lose, having this proposed order before the judge at the time he or she issues a ruling increases the chance that your client’s concerns will be adequately addressed. If the judge fails to consider issues you consider important, your proposed order provides the basis for a reconsideration motion. Assuming, your client is willing, this proposed order also provides a good starting point for an appeal brief.

Following the above recommendations will not guarantee your client’s success but it should maximize the benefits clients receive from the fees and costs they put into the case. Hopefully it will also prevent you from losing cases due to lack of preparedness while minimizing the number of cases you try that you should have settled.

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

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