South Carolina Family Law Blog : Spartanburg Divorce Lawyer & Attorney : Turnipseed, Brannon & Stevens Law Firm : South Carolina Family Law Serving Columbia, Charleston, Greenville, Hilton Head Island

The South Carolina Court of Appeals issued a decision last week in Department of Social Services v. Laura D that it is necessary for incarcerated parents to be present at hearings, particularly when the Family Court has already issued an Order requiring the Department of Corrections to transport that parent to the hearing.

After the child of Mother tested positive for cocaine, the child was taken into emergency protective custody and Mother was ordered to complete a treatment plan. Prior to a scheduled judicial review hearing, Mother was incarcerated. Although the family court ordered the Department of Corrections to transport Mother to the hearing, it failed to do so.

At the hearing, Mother's counsel moved for a continuance based on Mother's absence but the trial court denied the motion, finding Mother to be at fault for her absence based on her incarceration. The Mother appealed, and the Court of Appeals reversed and remanded for a new hearing with Mother present.

The Court of Appeals held that Mother was a necessary and proper party to the action and that the Family Court's refusal to grant her motion for a continuance denied her meaningful access to the courts. The Family Court's reliance on Mother's incarceration preventing her from being present at the hearing was misplaced because she was entitled to be present at the hearing under the court's order of transport.

You can read the full text of this opinion by clicking HERE.

 

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The South Carolina Supreme Court issued an Order on November 20, 2009, that eliminates the appointment of attorneys to serve as Guardians ad Litem (GALs) pursuant to Rule 608 in abuse / neglect cases brought by the Department of Social Services in the Family Court, effective July 1, 2010.  Attorneys appointed prior to the amendment will continue to serve until they are relieved under the rules or until the matters have been properly concluded.  The complete text of the Court's order can be found here.

 

 

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Jeanne M. Hannah has began a new feature at her Updates in Michigan Family Law blog, called "Jeanne's Toolkit", which aims to help both new and experienced lawyers perform certain tasks.  The first tool helps you get to the right desk with requests in any state and at all federal agencies under the Freedom of Information Act (FOIA).

The fact is that family law attorneys often need copies of public records. These can range from police reports to protective service worker's reports to information about a serviceperson in the armed services. The Freedom of Information Act (FOIA) compels the agency or governmental department holding the records to produce them within ten days of the request.

The fastest, easiest way to generate these requests is the FOIA Letter Generator, from the Reporters Committee for Freedom of the Press.  You simply select the appropriate state or federal agency, specify what type of information you are seeking, and it generates the letter for you!

Source:  "Jeanne's Toolbox - FOIA Requests" by Jeanne M. Hannah, published at her Updates in Michigan Family Law blog.

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The South Carolina Children's Code has been moved from S.C. Code § 20-7-10 et seq to the newly created Title 63 by virtue of Act. No. 361 of the 2008 legislative session, effective June 16, 2008.  Over many years, the Children's Code had become cumbersome and difficult to use, but the new S.C. Code § 63-1-10 et seq will hopefully resolve that problem.  The attached conversion table makes it easy to locate sections, and you can download a *.pdf version of the conversion table by clicking HERE.

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Our firm frequently helps clients with issues concerning their children's names. Unmarried parents often want to change the child's birth name - whether to the Father's surname or to the Mother's surname. Married parents sometimes want to change the children's names during or after a divorce, especially if the marriage is of short duration. Teenagers will sometimes implore their custodial parent to ask the court change their name to that of a step-dad, especially if that person has been the "father figure" for most of the child's life and/or the biological father has not been active in the child's life.

When seeking to change a child's surname, South Carolina law requires consideration of the following nine factors to determine if changing a child's name is in the child's best interest:

1. the length of time the child has used the present surname;
   
2. the effect of the proposed change on the preservation and development of the child's relationship with each parent;
   
3. the identification of the child as part of a family unit;
   
4. the wishes of each parent;
   
5. the reason the petitioning parent states for the proposed change;
   
6. the motive of the petitioning parent and the possibility the child's use of a different name will cause insecurity or a lack of identity;
   
7. the difficulty, harassment, or embarrassment the child may experience if the child bears a surname different from that of the custodial parent;
   
8. if the child is of age and maturity to express a meaningful preference, the child's preference; and
   
9. the degree of community respect associated with the present and proposed surnames.

The primary case in South Carolina on this issue is Mazzone v. Miles, 341 S.C. 203, 532 S.E.2d 890 (Ct.App. 2000).

Thanks to my law partner, Paul MacPhail, for providing this post.

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Over the years, we have had numerous cases where our adult clients wanted to change their name for some reason other than divorce. For example, some change their name because they’ve used a different name during their adult years on numerous records other than the name on their birth certificate, and now as retirement approaches, they need to get their records straightened out. Others want to honor their step-father by adopting his last name. Some have a different sexual identity, and want or need to change their first name to reflect the proper gender. Still others are just embarrassed by their name, and want to change it to avoid further embarrassment.

Courts are now giving higher scrutiny to name changes due to security concerns. In South Carolina, at the time of filing of a Complaint to change an adult’s name, the petitioner is now required to provide all of the following documents:

• results of a fingerprint and criminal background check conducted by the State Law Enforcement Division;
  
• a screening statement from the Department of Social Services that indicates whether the person is listed on the department's Central Registry of Child Abuse and Neglect;
  
• an affidavit signed by the petitioner which provides whether the petitioner is under a court order to pay child support or alimony; and
  
• a screening statement from the State Law Enforcement Division that indicates whether the person is listed on the division's sex offender registry.

The Court will only grant a name change after a hearing, and it will require that notification of the name change be provided to DSS, SLED, child support enforcement, and/or such other agencies as the Court deems appropriate if the Court has any concerns. For further clarification, see South Carolina Code Section 15-49-20.

Thanks to my law partner, Paul MacPhail, for providing this post.

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Question:

Can South Carolina grant me a divorce if I was married in North Carolina?

Answer:

The State in which you were married does not have anything to do with the State in which you can get divorced or separated.  If both you and your spouse have lived in South Carolina for more than three months (or either one of you for over a year), then SC will have jurisdiction to address your separation/divorce case.

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The South Carolina Bar recently issued Ethics Advisory Opinion 08-14, which addresses whether an attorney can including information in affidavits for temporary hearings.  Specifically, the issue was whether an attorney can file affidavits in support of ex parte requests or temporary hearings that include hearsay or information that is not based on the witness’s personal knowledge.

The Ethics Advisory Committee stated that a lawyer may file affidavits that include hearsay or information not based on a witness’s personal knowledge in support of ex parte requests or temporary hearings, so long as the hearsay or other information is clearly identified as such. The admissibility of that evidence is a matter of substantive law.  The details of the opinion are listed below.

Continue Reading...

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The Office of Public Health Statistics and Information Services (PHSIS) has revised the South Carolina Report of Divorce or Annulment of Marriage form (DHEC 0682). The revised form has a revision date of 02/2008 and will be implemented statewide on January 1, 2009. The 05/2007 version of this form will NOT be accepted for divorces or annulments with a date decree filed after December 31, 2008.

Revised forms may be obtained from each county Clerk of Court or may be accessed from S.C. DHEC's website.  However, the revised form on the website is available for electronic completion and printing only, and if completed online, it should be printed and the paper copy filed with the appropriate county Clerk of Court.  Instructions for completing the form are available HERE. 

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The South Carolina Supreme Court recently addressed the issue of whether a bigamous marriage can become valid if the prior marriage was annulled.  In Lukich v. Lukich, the Court found that a second marriage was bigamous, despite the annulment of the wife's first marriage, because the annulment was not procured until after the second marriage ceremony.  The Court specifically found that "while an annulment order relates back in most senses, it does not have the ability to validate the bigamous second 'marriage.'"  

Here are the interesting (yet complicated) facts of the Lukich case:

• In 1973, Wife married Husband #1.  They never lived together, but never divorced.
• In 1985, Wife and Husband #2 participated in a marriage ceremony.
• In 2002, Wife filed an action seeking separate support and maintenance and other related relief from Husband #2.  During the course of discovery, Husband #2 learned Wife had never been divorced from Husband #1.
• In 2003, Husband #2 filed an action seeking to declare his marriage to Wife void because it was bigamous.
• After that action was filed, Wife filed a separate suit seeking an annulment of her marriage to Husband #1.  That case was expedited, and an Order granting her an annulment was filed on October 31, 2003.
• Wife then filed a motion to dismiss Husband #2’s bigamy action based on the October 31, 2003, Order granting her an annulment and declaring her first marriage void ab initio. 
• The Family Court held that Wife was barred from defending against Husband #2’s action to void the parties' marriage on the basis of the Order of Annulment.
• Wife appealed, and both the Court of Appeals and Supreme Court affirmed, finding that since there was no marriage when the ceremony between Wife and Husband #2 was performed in 1985, there was nothing to be "revived" by the annulment Order in 2003.

You can read the full text of Lukich v. Lukich by clicking HERE.

 

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Question:  My wife's attorney recently served me with papers seeking a contested divorce.  I now live in a different state from my wife.  My wife knows that I have already retained an attorney in the same state in which she lives, but her attorney served the papers on me anyway instead of sending them to my attorney.  Do they have to send these papers to my attorney since he has been hired to represent me, or is it my responsibility to deal with them?

Answer:  In South Carolina, when a Family Court action is filed, the pleadings are almost always served on the other party, because the attorney usually does not know whether or not that person has hired an attorney.  In many cases, people claim that they have an attorney, when in fact they do not or when they have only met for an initial consultation.  If the other party really is represented by an attorney, that person can authorize his/her attorney to accept service of the pleadings on his/her behalf.  In any event, all you need to do in this situation is simply forward the papers to your lawyer for him to review and handle for you.

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The South Carolina Supreme Court issued an important decision today regarding cases heard under the Protection from Domestic Abuse Act.  This statute set forth in S.C. Code § 20-4-10 et seq enables victims of domestic violence to seek an "Order for Protection" to prevent such future abuse.

In Moore v. Moore, after the husband's was arrested for criminal domestic violence (CDV), the wife filed an action pursuant to the above-referenced Act, and she requested an emergency hearing.  At that hearing, the wife was offered a continuance to obtain counsel, but the husband’s request for a continuance was denied.  At that hearing, the Family Court found that the husband had abused the wife and their son, and it issued an Order of Protection.

The Court found that the husband was provided procedural due process prior to the issuance of the Order of Protection, and it affirmed the decision of the Family Court. The Court then found that an Order of Protection issued pursuant to an emergency hearing (a) is temporary, (b) does not represent a final adjudication of the merits of the action, and (c) should not be used against a party in future litigation.

You can read the full text of Moore v. Moore by clicking HERE.

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The following information is from the The Oregon Divorce Blog:

Divorce is not easy. There are many pitfalls and traps awaiting parties that have not educated themselves about the process. People often make bad decisions under stress, or without the guidance of an experienced lawyer. Don’t be one of them. Divorce law isn’t rocket science, but it isn’t always intuitive. Avoid the following 10 divorce pitfalls to get a better result.

During your divorce, you should NOT:

1. Lie to your lawyer: We are here to help you. Your communication with us is privileged, meaning we can’t tell others about it, except in certain child abuse scenarios. The more we know, the more we can help. We need to know everything, the embarrassing, the ugly, and the secret. If you have a drug, alcohol, or gambling problem, tell us. You have two options: (1) Disclose and likely hear from your lawyer that your secret or problem is irrelevant to the court process, or (2) Fail to disclose and have your case hurt at trial because the other lawyer knows facts you haven’t told your lawyer.
2. Lie to the court: If you have a trial, the result is directly affected by your credibility. Judges are generally experts at determining who is telling the truth, and who is lying. Not only is lying to the court a crime, but your lawyer may have a duty to stop the proceeding and tell the court if he or she knows you are misrepresenting facts! If you have areas of your case that are sensitive, work with your lawyer on what you are going to say, but don’t misrepresent.
3. Involve the kids in the process: If your case involves a custody or parenting time dispute, nothing will draw the wrath of the court faster than involving your kids in the dispute. Don’t talk to them about the case. Don’t use them as pawns in the battle against your spouse. Don’t use them as your therapist, or treat them as your peers. Don’t put your spouse down in front of the kids. You are not only harming your case, you are harming your children.
4. Hide or fail to produce documents: You have an absolute right to see your spouse’s financial documents. Your spouse has an absolute right to see your financial documents. I have seen many cases that could have been simple turn complex and expensive when someone decides to not voluntarily produce records. The court can force you to produce records, and order that you pay your spouse’s lawyer fees incurred in getting the records. Good clients and good lawyers produce documents quickly and voluntarily. I had a case where we asked for some email records from the other side. They did not produce them, and when we filed a motion to compel their production, they tried to tell the court that they had been destroyed. The stunt seriously impacted the opposing lawyer’s credibility with the court.
5. Refuse to cooperate with a court appointed expert: In divorce and custody cases, experts called “custody evaluators” are routinely appointed to gather information about a family and make a recommendation regarding an appropriate parenting plan. If one is appointed in your case, cooperate. Be on time for appointments. Treat the expert with appropriate respect. Ignoring the requests of the evaluator can seriously harm your position and credibility with the court. An evaluator will likely make negative assumptions about you if you cannot comply with a court’s order to cooperate.
6. Settle without analyzing your case: Divorce can be unpleasant and emotionally painful. One reaction is to try to get it over quickly. Do not give into the urge to be done with the case before you have a full understanding of the assets and what a fair distribution looks like. You don’t want to be in a position where you are contemplating settlement and your spouse knows more about the assets than you. Prepare and go over a proposed distribution of assets and liabilities with your lawyer. Make sure you know the nature and extent of the assets, and get additional discovery if you don’t. Do not settle prematurely, before you know what is fair.
7. Fail to try to resolve the case outside of court: Don’t settle early without analysis, but also don’t fail to try to settle. Good lawyers and reasonable people settle most divorce cases without a trial. Many clients benefit from mediation, either through the county courthouse or through a private mediator. Our experience has been that many very difficult settle in mediation with the guidance of a trained expert mediator. You should always consult with your lawyer during the process to make sure you are getting a fair result. Settling also means you choose the outcome rather than have a judge impose an outcome on you. Parties that settle are generally happier long term, and have less ongoing conflict. Even if the other side is unreasonable, you should still make an offer to create a record of your position.
8. Take out your stress in unhealthy ways: This is the wrong time to up the drinking or other unhealthy behavior. Expect stress from the conflict and plan for it. Take out your stress in healthy ways, like at the gym, sports, or in talking to friends or a counselor. Don’t take it out on your children, or your body through unhealthy behaviors.
9. Be economically irrational in negotiations: At some point in every case it costs more to continue arguing than what is at stake. Approach your case with a business like mind. Are you really winning if you spend $1000 on lawyers to argue over a $50 lamp? Some (bad) lawyers insist on arguing about every point, without regard to cost. Every issue is a new battle front. A request to resolve one issue results in two more contested issues. In our opinion, these lawyers don’t serve their clients well. Pick your battles. If it costs $1000 to argue over something you can replace at Target for $20, buy a new one, and focus on what is really important.
10. Be your own lawyer if your case is contested and your spouse is represented: Many judges dislike unrepresented parties. Even experienced divorce lawyers hire experienced divorce lawyers for an objective opinion. Many unrepresented people who think they have a great case find out otherwise after a judge rules against them because they can’t tell the judge everything they want to because of the rules of evidence. If you disagree over property or custody, and your spouse has a lawyer, seek representation.

Source:  "Top 10 List: Top 10 Things to NOT Do During Your Divorce" by C. Sean Stephens, published at The Oregon Divorce Blog.

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The new passport requirements that complicated travel this past summer have also uncovered vast numbers of parents who owe back child support.  Through its Passport Denial Program, the State Department denies passports to noncustodial parents who owe more than $2,500 in back child support. Once the owing parent has satisfied their child support arrearage, they may reapply for a passport.

Considering that millions of additional travelers are now required to have passports to fly back from Mexico, Canada, the Caribbean, and South America, collections under the Passport Denial Program are on pace to almost double this year.  States have reported collecting at least $22.5 million through the program thus far in 2007.  Perhaps this is one program that the government has finally gotten right.

Source: "New Passport Rules Help Recover Back Child Support" by Dan Nunley, published at his Oklahoma Family Law Blog.

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Gerald Williams of the Minnesota Divorce and Family Law blog posted the following article, which addresses the issue of settlements versus trials in family law cases.  Most experienced family law attorneys know that reaching an reasonable, amicable resolution is generally the best outcome in most cases, and this article provides some insight into why.  Here is Mr. Williams' article:

Why do some divorce and child custody cases settle out of court, and some cases have to go to trial?  There are many factors that determine whether a family law case will settle outside of court, the most important which involve the willingness of the parties to compromise, and the willingness of the attorneys for the parties to facilitate that compromise.

Preparing for and proceeding with a family court trial is a long, expensive process.  If the parties are close to reaching an agreement, but are unable to arrive at the final stipulated terms, both parties are likely to spend more on the expense of going to trial than they would if they EACH accepted the other party's terms.

Conversely, if the parties are not close to reaching an agreement, there most likely is a principal issue that needs to be addressed by the family court.  Examples are whether there should be any spousal maintenance at all; whether an antenuptial agreement is void or not; or whether a third party is entitled to visitation with a minor child.

In the first example, the AMOUNT of spousal maintenance might be resolved by compromise, but only if both parties presume that there will be spousal maintenance.  Otherwise, the dispute about whether there should be spousal maintenance at all may need to be decided by the court.  In the second example, how to apply the terms of an antenuptial agreement can be negotiated and compromised.  But if there is a fundamental question about whether the antenuptial agreement is even valid or not, the family court may need to render a decision.  In the third example, discussions about a visitation schedule cannot take place if there is disagreement about who is entitled to have the court-ordered right to have the subject minor child in their care in the first place.

One key advantage to a settlement out of court is the fact that the parties have the final say in the terms of their divorce or child custody dispute, rather than the court.  In all likelihood, the parties will be assenting to a conclusion that is not as favorable as their best possible result in court.  But it may be worth avoiding the risk of going to court and not getting the best possible result.

Source:  "Settlement Versus Trial" by Gerald Williams, published at his Minnesota Divorce and Family Law blog.

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A psychological (or de facto) parent  can be defined as a person who has, on a day-to-day basis, undertaken a parental role through interaction, companionship, interplay, and mutuality, that fulfills a child’s physical and psychological needs and provides for a child’s emotional and financial support.

South Carolina has adopted a four-prong test for determining whether a person has become a psychological parent.  Specifically, in order to demonstrate the existence of a psychological parent-child relationship, one must show:

1. that the biological or adoptive parent(s) consented to, and fostered, the person's formation and establishment of a parent-like relationship with the child;
2. that the person and the child lived together in the same household;
3. that the person assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and
4. that the person has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

In announcing this test, the Court of Appeals stated that [t]hese four factors ensure that a nonparent’s eligibility for psychological parent status will be strictly limited.  It also cautioned that psychological parents do not automatically have the right to demand custody in a dispute between the legal parent and psychological parent, as the limited right of the psychological parent cannot usually overcome the legal parent’s right to control the upbringing of his or her child.

The Court reasoned that once the bond between the psychological parent and child was established, it should not be unilaterally severed by the biological parent who fostered the relationship in the first place.  The standard to be applied is whether compelling circumstances exist to overcome the presumption that a fit, legal parent acts in the child’s best interest, and of course, visitation must actually be in the child’s best interest. The compelling circumstances standard encompasses a situation where, as here, a third party has attained psychological parent status.

You can read much more about the role and status of psychological parents in South Carolina in Middleton v. Johnson, 369 S.C. 585, 633 S.E.2d 162 (Ct. App. 2006).  This opinion includes a thorough discussion of this theory, including analysis of the decisions from other states.

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A mother who lost custody of her three children in a divorce has argued to the Washington Supreme Court that she should have had an attorney appointed to represent her.  The woman, who only has a ninth-grade education, attempted to get pro bono representation, but she was declined because of the complexity of her case.  As a result, she ended up representing herself, while her husband had an attorney.

Her appeal focuses on the open courts provision of the Washington state constitution includes an open courts provision, which says that justice in all cases should be administered openly, and justice shouldn’t be delayed.  The argument being made by the mother's appellate attorney is that "access" in this instance means "meaningful access," which requires a lawyer.

You can read much more about this novel theory in the article referenced below.  You can also follow this case, King v. King, No. 57831-6-1, at the Washington Supreme Court's website.

Source:  "Mom Wants State to Pay in Custody Battle" by Stephanie Francis Ward, published in the ABA Journal eReport.

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Last week in Ray v. Ray, the S.C. Supreme Court found that the wife's actions rose to the level of extrinsic fraud when she engaged in a scheme to hide assets from the court, using an unknown third party not subject to discovery during the divorce proceeding.  The Court found that Chewning v. Ford Motor Company does not limit extrinsic fraud to conduct perpetrated by attorneys. An act of perjury or concealment of a document coupled with an intentional scheme to defraud the court justifies the setting aside of a judgment due to extrinsic fraud.

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A few months ago, I became trained as a collaborative lawyer.  This process involves  handling cases differently than the traditional litigation approach, and it can work well in certain family law cases.  The collaborative law process is well explained in the following article by Maury D. Beaulier:

Collaborative law is a new way to resolve disputes by removing the disputed matter from the litigious court room setting and treating the process as a way to "troubleshoot and problem solve" rather than to fight and win.

As part of the collaborative law method, both parties retain separate attorneys whose job it is to help them settle the dispute. No one may go to court. If that should occur, the collaborative law process terminates and both attorneys are disqualified from any further involvement in the case.

Each party in the Collaborative law process signs a contractual agreement which include the following terms:

• Disclosure of Documents.  Each party agrees to honestly and openly disclose all documents and information relating to the issues. Neither spouse may take advantage of a miscalculation or an inadvertent mistake. Instead, such errors are identified and corrected.
• Respect.  Each party agrees to act respectfully and avoid disparaging or vilifying any of the participants.
• Insulating Children.  As part of the process all participants agree to insulate the children from the proceeding and to act ins such a way as to minimize the impact of the divorce on them.
• Sharing Experts.  The parties agree to implement outside experts where necessary in a cooperative fashion and share the costs related to those experts. (eg. real estate appraisers, business appraisers, parenting consultants, vocational evaluators, or accountants)
• "Win-Win" Solutions.  The primary goal of the process is to work toward an amicable solution and to create a "win-win" situation for all.
• No Court.  Neither party may seek or threaten court action to resolve disputes. If the parties decide to go to court, the attorneys must withdraw and the process begins anew in the court system.

One of the biggest differences in the Collaborative law process is that it recognizes that emotional issues exist that cannot be addressed by the legal system. How often have you heard stories of divorcing parties spending thousands of dollars in legal fees to argue about pets or furniture that has limited monetary value.

Generally speaking, the parties in such cases are not arguing about dogs, cats, or furniture. Instead, they are reacting to psychological pains that they experiencing These emotional issues that are ignored in the Court process. By contrast, the collaborative law process specifically addresses these issues by bringing them to the forefront and using professionals as part of team approach to find solutions.

A team of professionals is assembled to help the parties understand and resolve their disputes i many different contexts. The disputes maybe legal disputes or emotional and include: mental health counselors/ coaches for each party, neutral financial advisors, accountants, parenting specialists, child specialists, vocational experts, and appraisers, if needed.

A child specialist may play a very important role in the collaborative process. So often, children become the unintended victims in divorce proceedings. They internalize the conflict and often blame themselves for the break up of their family. The child specialist works with children of divorcing parents. It is their job to assist the children in understanding that the parental dispute is not their fault and to teach them how to cope and communicate with their parents. In this way, the children have a voice in the proceedings and become part of the team process.

Financial professionals may be used to help define values of assets. In the litigious court process often redundant appraisals are performed by one expert for each party. The end result is a duplication of services at greater cost and with increased distrust. this often results in an expensive war of experts at trial where each expert testifies regarding their different valuations. In the collaborative process, the parties choose a neutral appraiser that is not associated with either party. With a trust relationship established, the parties agree on some division of cost and agree to be bound by the appraised value.

Most Cases Settle. The Statistics state that more than 90% of all divorce cases are resolved without a trial. In the Court system that resolution often comes more than a year after the divorce was commenced and after many hurtful statements have been made part of the public record in the form of affidavits and motions. Doesn't it make more sense to seek that resolution before the bridges are burned and the missiles are launched in a courtroom? Certainly, collaborative law will not work in every case. After all, it takes two to tango and it takes two willing participants to effectively use the collaborative law process. However, in the cases where collaborative law has been used, even if reluctantly, there have been more rapid settlements at a fraction of the normal cost associated with divorce.

Source:  "Collaborative Law: Divorce without War" by Maury D. Beaulier, published at DivorceSource.  Thanks to Grant D. Griffiths of the Kansas Family & Divorce Lawyer blog for his post on this subject.

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As discussed in my last post, there are at least two hearings in most Family Court cases:  a temporary hearing and a final hearing.  The final hearing is sometimes referred to as a merits hearing.  At the final hearing, each side presents witnesses to testify as to the facts of the case.  Both parties are allowed the necessary amount of time to testify and to present their evidence about the case.  Final hearings can last anywhere from 15 minutes to several days, depending on what facts are at issue in that particular case.

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In most Family Court cases, there are at least two hearings:  a temporary hearing and a final hearing.  The temporary hearing is sometimes referred to as a motion hearing, because the Court addresses the issues specified in a Motion for Temporary Relief.  At the temporary hearing, the Court determines how the issues in each specific case will be addressed between that date and the final hearing.

Each attorney briefly states his client’s position, and each side presents Affidavits (written statements from the parties and witnesses) to support his client’s position.  There is usually no “live” testimony given by the parties at the temporary hearing.  The Judge will then make a decision after reading the pleadings and affidavits.

However, some Judges do not read the Affidavits, while others do not give the attorneys much opportunity to argue their client’s position at this hearing.  Some Judges make decisions at the hearing, and others take the matter under advisement and let the parties know their decision at a later date.  The specific procedure in temporary hearings tends to vary slightly from Judge to Judge, case to case, and even from day to day.

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Most contested Family Court cases consist of at least two hearings. The first hearing is called a temporary (or motion) hearing, and the second hearing is called a final (or merit) hearing.

Temporary Hearing:  At this hearing, the Court determines how the issues in that specific case will be addressed between that date and the final hearing.  Each attorney briefly states his client’s position, and each side presents Affidavits (written statements from the parties and witnesses) to support his/her respective position. There is usually no “live” testimony given by the parties at the temporary hearing.

The Judge usually makes a decision after reading the pleadings and affidavits.  However, the specific decision-making process varies from judge to judge, case to case, and even day to day.  For instance, some judges don't read the Affidavits, while others don't give the attorneys much opportunity to argue their client’s position.  Some judges make decisions at the hearing in everyone's presence, but others take the matter under advisement and let the parties know their decision later.

Final Hearing:  At the final hearing, each side has an opportunity to present his/her witnesses, who testify as to the facts of the case.  Each party is allowed the necessary amount of time to testify and to present his/her evidence about the case.  Final hearings can last anywhere from 15 minutes to several days, depending on what facts are at issue in that particular case.

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Clients often ask whether their child can (or will have to) testify in Family Court.  The answer is generally no in almost all cases.  Most experts agree that it is never good for a child to testify in Court, and it may lead to serious psychological damage later in addition to permanently injuring the relationship between the child and one or both parties.

In rare cases, children can sometimes be witnesses in Family Court cases.  In such cases, the child must be of sufficient age or awareness that his/her testimony will be believed.  In some cases, the Judge may agree to talk with a child in Chambers, but most Judges don't -- except in rare, extreme circumstances. Usually, the child’s position in a case is represented through a Guardian ad Litem, who is appointed to protect the child’s interests.

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In South Carolina, all Family Court cases are decided by a Judge, not a jury.  Typically, the only people present in the courtroom are the lawyers, the parties themselves, the Judge, the court reporter, the bailiff (Sheriff's Deputy), and sometimes the witnesses. 

However, witnesses can be (and frequently are) required to remain outside the Courtroom until after they have testified.  In contested cases, attorneys generally do not want the witnesses' testimony to be influenced, biased, or tainted by hearing the testimony of other witnesses.

Source:  Stevens - MacPhail, P.A. website

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The U.S. Department of Labor published an article which answers the following common questions about drafting Qualified Domestic Relations Orders (QDROs):

• What is the best way to divide a participant's pension benefits in a QDRO?
• How much can be given to an alternate payee through a QDRO?
• Why are the reasons for dividing the pension benefits important?
• In deciding how to divide the participant's pension benefits, why is understanding the type of pension plan important?
• What are survivor benefits, and why should a QDRO take them into account?
• How may the participant's retirement benefit be divided if the pension plan is a defined contribution plan?
• How may the participant's retirement benefit be divided if the pension plan is a defined benefit plan?
• May the QDRO specify the form in which the alternate payee's benefits will be paid?
• When can the alternate payee get the benefits assigned under a QDRO?
• What is earliest retirement age, and why is it important?

Source:  "Drafting Qualified Domestic Relations Orders" published at the U.S. Department of Labor website.  Thanks to Grant D. Griffiths for his article on this subject published at his Kansas Family & DIvorce Lawyer blog.

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Attorneys should be sure that their clients understand the basics of what "burden of proof" must be proved in their divorce cases.  The more a client knows, the more helpful he/she can be in obtaining the necessary evidence to help the attorney prove the case and obtain the divorce.

Each of the divorce grounds has certain, specified elements that must be proven. For instance, in order to be granted a divorce on adultery, a party must prove by "clear and convincing" evidence that his/her spouse had both “inclination and opportunity” to have intercourse with a person of the opposite sex. However, the law does not require absolute proof of adultery.

It is usually necessary to have some corroborating evidence in addition to the testimony of the suing party. There are numerous ways to prove divorce grounds. For instance, in cases of physical cruelty, treating physicians can testify about medical treatment rendered or witnesses can testify about marks and bruises they have seen. In adultery cases, pictures of the spouse and lover acting romantically or entering an apartment or motel are sometimes sufficient. In habitual drunkenness cases, the Court can consider things such as prescription records, checks at liquor stores, or pictures of empty liquor bottles.

In rare cases, the Judge may not require corroborating evidence if he is thoroughly convinced there is no collusion. Collusion means the parties have conspired to fake the grounds for divorce. Collusion is illegal and leads to perjury and is also unethical and improper.

Source:  Stevens - MacPhail, P.A. website

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Qualified Domestic Relations Orders (QDROs) are documents used to allocate retirement accounts when parties get divorced.  For people that don't regularly deal with QDROs, they can be quite confusing.  Fortunately, the U.S. Department of Labor published an article which answers many of the most common questions in great detail, including:

• What is a Qualified Domestic Relations Order?
• What is a Domestic Relations Order?
• Must a Domestic Relations Order be issued by a state court?
• Who can be an Alternate Payee?
• What information must a domestic relations order contain to qualify as a QDRO under ERISA?
• Are there other requirements that a domestic relations order must meet to be a QDRO?
• May a QDRO be part of the divorce decree or property settlement?
• Must a domestic relations order be issued as part of a divorce proceeding to be a QDRO?
• May a QDRO provide for payment to the guardian of an alternate payee?
• Can a QDRO cover more than one plan?
• Must all QDROs have the same provisions?
• Who determines whether an order is a QDRO?
• Who is the administrator of the plan?
• Will the Department of Labor issue advisory opinions on whether a domestic relations order is a QDRO?
  

Source:  "Qualified Domestic Relations Orders" published at the U.S. Department of Labor website.  Thanks to Grant D. Griffiths for his article on this subject published at his Kansas Family & DIvorce Lawyer blog.

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Once the Court hears a matter, the presiding Judge instructs one of the attorneys to prepare the proposed Order, which sets forth the Court's ruling in that particular case.  Sometimes this request is made immediately at the conclusion of the hearing, and other times it is made later after the Court has had adequate time to consider the issues and make its decision.

I recently had someone contact me to ask how long the attorney has to prepare a proposed Order and submit it to the Court.  The answer is that there no "one" answer and it can vary from Judge to Judge, but as with most things in Family Court, it must be done within a "reasonable" time.

Some Judges have very strict guidelines as to how soon they require proposed Orders to be submitted.  It is rare to have a Judge demand an Order be submitted in less than ten (10) days, because it has to be drafted, reviewed by the opposing counsel, and then forwarded to the Court, each of which requires a little time to accomplish. 

Other Judges are much more relaxed on how soon they receive proposed Orders.  I have seen instances where Orders were not submitted for several months after the hearing was concluded.  Sometimes that happens because the Judge took an unusually long time to make a decision.  In other cases, there could be a disagreement between the attorneys over certain language that one wants to include in the proposed Order.  Unfortunately, in some cases, the attorney responsible for preparing the Order simply delays doing so, due to his/her work load, other obligations, and/or simple procrastination.

Personally, I strive to have the proposed Order forwarded to the opposing counsel as soon as possible, because I like to draft the Order while the Judge's ruling and the facts of the case are still fresh in my mind.  Typically, this process occurs within a week to ten days from the time I receive the Judge's instructions.  Of course, there have been times that this process has taken longer, but I make a concerted effort to have Orders drafted, circulated, filed, and distributed as soon as practical in my cases.

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Question:  What is the Biggest Mistake Fathers Make in Paternity Cases?

Answer:   Delaying. Many fathers wait too long to legally establish paternity in the family court. While many fathers do not understand the importance of having the family court declare them the legal father of their child and delay on that basis, other fathers simply wait until the relationship with their child's mother goes south or a process server serves them (the father) with papers for child support, child custody and/or visitation. This results in substantial problems that could have been avoided by dealing with the issue under the applicable family laws right away.

Some of the problems delay in establishing paternity can cause include decreased chance of primary physical or joint custody, child support arrearages, an appearance of disinterest and the impression that the Arizona courts are not fair to fathers. Let me explain:

Child Custody and Visitation: The courts like consistency in a child's life. Thus, if a father does not does not have a court order declaring him to be the legal father, it is very likely that the mother has been allowed to prevail on disputed issues regarding those entities that require proof of a parent's legal rights to make decisions. Such entities include schools, daycares, medical facilities, the Office of Vital Records and the like. Thus, it is likely that when it comes to making its decision about legal custody, the family courts usually go with the perceived status quo.

Similarly, if a father does not have anything done officially in the courts to solidify his rights, the mother has complete control over visitation and it is very possible that the father will be having access to his child less than he would prefer. So, as with custody, the family court may opt for the status quo, meaning that the father will receive the [possibly minimal] visitation he received up to the time the family court became involved. Thus, establishing legal rights early can help prevent a negative status quo. Of course, many fathers have their children residing with them or while also living with the child's mother and that is a very relevant factor the court considers when determining child custody and visitation, regardless of when the family court officially declares paternity and visitation rights.

Child Support Arrearages (Arrears): At the time the family court establishes legal paternity (via an "Order of Paternity"), the family court almost always also establishes child support. Like it or not, the family court also routinely orders that child support be made retroactive to a certain date. How far back the family court can go in retroactively apply child support varies based on a case's particular facts but the normal rule of law is three years. Thus, if a father either paid nothing or underpaid pursuant to the Child Support Guidelines, the father will have to pay both his current support and the arrears. In addition, the court can order that the father pay costs associated with the child's birth and the mother's expenses related thereto. Therefore, it is best to legally establish paternity quickly to avoid having large child support arrearages and other amounts owed.

The Appearance of Disinterest: It is possible that when a father waits too long to officially request his legal rights to his child, a family court judge could see it as a sign of disinterest. This varies from situation to situation but in the case where a father does not live with his child, it looks better when the father shows enough interest to study up on his legal rights and initiate court proceedings to officialize custody and visitation (parental access), decision-making rights and child support. In particular, judges may see in negative terms a father's request for visitation and other legal rights done only after a mother brings an action in the family court to establish paternity and child support.

Unfairness to Fathers: There may a number of factors that make some believe that the family courts are not fair to fathers when it comes to child custody, child support and parenting time. Obviously, that is a big debate. However, my personal experience shows me that the perception is worse for those fathers who delay establishing paternity. As discussed above, delay can mean that mothers have an advantage over fathers.

Source:  "What is the Biggest Mistake Fathers Make in Paternity Cases?" by Trent Wilcox, published at his Arizona Divorce & Family Law blog.

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As I posted yesterday, judges want parties to act reasonably in their Family Court cases.  However, judges also want attorneys to do the same.  As discussed in my post today at the South Carolina Personal Injury Law blog, some judges have made it clear that they will not tolerate uncivil or unreasonable conduct from attorneys appearing before them.

For instance, U.S. District Judge Sam Sparks of Austin, Texas issued an Order in 2004 in which he said that he felt like he is supervising kindergarten, because the lawyers involved in a civil suit in his court were acting like they never learned how to get along with others.  Judge Sparks' Order expressed his "disgust" at the lawyers' conduct, and said "The Court simply wants to scream to these lawyers, 'Get a life' or 'Do you have any other cases?' or 'When is the last time you registered for anger management classes?'"

Fortunately, while there are exceptions, the vast marjority of attorneys in South Carolina are civil to one another and do abide by the rules, both in word and in sprit.  I detest working with attorneys who do not, and I make every effort to avoid having them involved in my cases whenever possible. 

Those cases in which the parties and attorneys work in good faith toward a fair and equitable resolution are the ones that tend to (a) settle amicably, (b) get resolved sooner rather than later, (c) tend to be less expensive, and (d) give the parties the best chance to have a working relationship with each other after the case is concluded.

You can read more about the outrageous conduct of the attorneys in the Texas case as well as Judge Sparks' full opinion by reading my post, "Judge Condemns Attorneys for Outrageous Behavior" at my South Carolina Personal Injury Law blog.

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One question that is frequently asked is whether someone can put his/her spouse out of the home without his/her consent.  When spouses cannot get along and at least one party realizes that they are headed toward separation or divorce, this issue must be addressed sooner or later.

The answer is that until and unless the Family Court issues an Order stating otherwise, both spouses have equal rights to the residence.  As such, each can try to put or keep the other out, typically by changing the locks and alarm codes.  However, the displaced spouse can take any necessary steps to regain entry to the home, including "breaking in" if necessary.  One cannot be criminally charged in South Carolina for breaking into his/her own home. 

Once the Family Court addresses this issue, an Order will be issued which clearly sets forth the parties' rights, responsibilities, and obligations with regard to the home.  Such an Order will generally set forth which party has the exclusive temporary use and possession of the home, as well as how the expenses related to the home will be paid as the case progresses.

Please note that I am not recommending that anyone put his/her spouse out of the house or that anyone forcibly break back into his/her home.  Those issues are very fact specific and trial strategy  with an experienced family law attorney should play an important role in making such a decision.

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From the South Carolina Personal Injury Law Blog:

Can an insurance company interject itself into a Family Court action filed to determine whether or not someone has a valid common law marriage?  The South Carolina Supreme Court answered this question by clearly stating "no" in an opinion filed yesterday, In Re Cooper.

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Each of the divorce grounds has certain, specified elements that must be proven. For instance, in order to be granted a divorce on adultery, a party must prove by "clear and convincing" evidence that his/her spouse had both “inclination and opportunity” to have intercourse with a person of the opposite sex. However, the law does not require absolute proof of adultery.

It is usually necessary to have some corroborating evidence in addition to the testimony of the suing party. There are numerous ways to prove divorce grounds.  For instance, in cases of physical cruelty, treating physicians can testify about medical treatment rendered or witnesses can testify about marks and bruises they have seen.  In adultery cases, pictures of the spouse and lover acting romantically or entering an apartment or motel are sometimes sufficient.  In habitual drunkenness cases, the Court can consider things such as prescription records, checks at liquor stores, or pictures of empty liquor bottles.

In rare cases, the Judge may not require as much corroborating evidence if he/she is thoroughly convinced there is no collusion. Collusion means the parties have conspired to fake the grounds for divorce. Collusion is illegal and leads to perjury and is also unethical and improper.

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Divorce and separation cases can be either "contested" or "uncontested."  As you might expect, contested cases tend to take longer, be more stressful on the parties, and end up being more expensive.  Most cases in Family Court (as in other courts) settle, but some settle much sooner than others.  It is very important to have a qualified attorney advise you of your options based on the specific facts of your case as soon as possible so that you can make informed, intelligent decisions as to how best to proceed.

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The South Carolina Retirement Systems has posted an updated Qualified Domestic Relations Order (QDRO)  Model Order and Guidelines on its website. The Model Order and Guidelines address all information that is required by statute and provides guidance on various methods of calculating the division of state retirement benefits from the defined benefit plans (not 401(k) or 457 plans). Although it is not required that a QDRO be prepared identically to the Model Order and Guidelines, conformance will make the approval process quicker and easier and will provide accuracy for future implementation of the QDRO.

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The South Carolina Supreme Court issued an Order on January 10, 2007, which sets forth procedures for the use of videoconferencing in certain situations in our Family Courts.  Specifically, this process may be used, with the party's written and oral consent, for the purpose of hearing bench warrants, Department of Social Services cases limited to emergency protective custody, intervention hearings, status review hearings, and permanency planning hearings.  You can read the full text of this Order by clicking HERE.

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The SC Court of Appeals has affirmed a trial court's decision to hold a party in contempt of court for (a) making an obscene finger gesture to his attorney after the hearing concluded and (b) using profanity directed at the judge.  While most people would certainly not act as outrageously as the man in this case, it serves as a good reminder that parties should always be on their best behavior in Court.

In this case, the party apparently "flipped off” the attorney and then told the judge “f**k you, you bastard.”  Even after being held in contempt and sentenced to serve a year in jail for his contemptous actions, the party was still not finished.  On his way out of the courtroom, he apparently fought with the deputies, only to be brought back in to be chastised by the judge.   For his antics, the judge sentenced him to two, six-month sentences for contempt, to be served consecutively consecutively to each other, for a total of one year in jail.

The Court of Appeals held that all courts have the inherent power to punish for contempt to preserve order and maintain decorum in judicial proceedings.  Contemptuous conduct in the presence of the court is direct contempt, and South Carolina courts have taken an expansive view of the “presence” and “court” requirements to encompass all elements of the judicial system, not just the mere physical presence of the judge or courtroom.  No warning of possible contempt is necessary.

In his appeal, the party argued that his sentence should be vacated because he was entitled to a jury trial.  The United States Supreme Court has held that petty crimes can generally be tried without a jury trial, but serious crimes require a jury trial if the accused requests one.  The distinction between a "petty" and "serious" crime is generally determined by the maximum punishment assigned by the legislature.  Crimes with punishments of six months or less are presumably “petty,” while crimes with punishments greater than six months are presumably “serious.”

In this case, the Court of Appeals noted that the two consecutive six-month sentences are the equivalent of a one-year sentence, which would normally entitle a defendant to a jury trial if he or she requested one.  However, the party in this case never requested a jury trial, and he never objected to the imposition of the contempt sentences without a jury trial.  For those reasons, the appellate court found that this issue was not preserved for appellate review, and it affirmed the trial court's sentences for contempt.

You can read the full opinion in Rhoad v. State by clicking HERE.

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The South Carolina Supreme Court recently issued a decision which addressed problems that can arise for both parties and their attorneys when dealing with multi-state child support issues.  Specifically, it addresses what can happen when two different states issue child support orders and the second one does not specifically nullify the first one.

In this case, the parties were divorce in California in 1986, and an order was issued there requiring the father to pay child support to the mother.  The father later moved to South Carolina, and the mother filed a support petition here pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA), S.C. Code Sections 20-7-960 to -1170.

Prior to the hearing, the parties reached an agreement, and an Order approving their agreement was issued in 1990.  The SC Order referred to the prior California order but did not explicitly nullify it.  In 2003, the father was found in contempt of court here in SC for his failure to pay support pursuant to the 1986 California Order.  The father argued that the 1990 SC order modified the 1986 California order.

The problem the father encountered was that URESA contains an "anti-nullification clause" (found at S.C. Code Section 20-7-1110 states that a “support order made by a court of this State pursuant to this subarticle does not nullify and is not nullified by … a support order made by a court of any other state … unless otherwise specifically provided by the court.” 

Citing that statute, the Court of Appeals held that the 1986 California order remained independently enforceable in South Carolina because the 1990 South Carolina order did not indicate it was intended to nullify the California order.  The Supreme Court affirmed the Court of Appeals' decision on that same basis.

You can read the full text of SCDSS v. Martin by clicking HERE.

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It sounds almost too good to be true -- the "do-it-yourself" divorce.  Why would you want to have to deal with lawyers or spend thousands of dollars on attorney's fees if you don't have to?  In South Carolina, as in most (if not all) other states, parties are allowed to represent themselves in Family Court for any case, including divorces.

When I am asked this question, I typically respond with this analogy.  When you are sick, you can go to the pharmacy and try to get some over-the-counter medicine to treat yourself or you can go to a doctor.  Sometimes, you only have something minor, like a cold, and treating yourself might work alright.  However, other times, the symptoms that you think are nothing could be a sign of something more serious.  Even worse, failing to seek medical treatment promptly might result in more serious consequences later.

Attorneys charge fees for their expertise in their areas of practice.  They know which cases are serious and which are simpler.  They can advise you of what course of action is right for your specific fact situation.  One of the things that I enjoy about Family Court cases is that almost every single case is different due to the people and facts involved.  You simply cannot get that from a "kit".

I have seen far too many cases where people tried to handle their case without an attorney, only to cause greater problems for themselves.  For instance, what if certain assets (such as retirement accounts) are not addressed in the Divorce Decree?  What if the order doesn't require the other person to refinance the mortgage on the former marital residence?  These problems can have long lasting effects, which may not be able to be corrected at a later date when they are discovered.

If you want to read more about what can happen in "do-it-yourself" divorces, you should read the article, "Do-It-Yourself Divorce Doesn't Always Sever Ties" by Jessica Garrison, published earlier this week in the Los Angeles Times, or the United Press International article, "Calif. Couples Stumped by Divorce Process" published yesterday.  That article explains that sometimes those cases result in people actually not being divorced, only to later learn that they are committing bigamy.  In South Carolina, bigamy is still a crime, specifically it is a felony. 

The bottom line is that you shouldn't put yourself in that situation.  If you want to get a divorce, you should always consult a qualified attorney.  You can almost always find an attorney that fits within your budget, and any attorney is generally better than no attorney.  However, you typically get what you pay for, and you will probably get better service and better results from a quality family law attorney.

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Before he discontinued his excellent New Jersey Family Law Blog, Pieter Droppert published the following article discussing where is the habitual residence of a child under the Hague Convention?:

Thanks to Charles Abut’s New Jersey Family Law blog for drawing attention to the informative and well written opinion of Judge Posner in the 7th Circuit Court of Appeals case of Kijowska v. Haines where the question presented is what is the definition of “habitual residence” for the purposes of the Hague Convention? This case is relevant to New Jersey, since many parents are immigrants or nationals of other countries.

The Hague Convention on the Civil Aspects of International Child Abduction gives a parent of a child who has been wrongfully abducted or detained, the right to petition the court in the country where the child has been taken to have the child returned. This convention only applies to countries who are party to it e.g. United States, but not to countries who are not e.g. China.

The Hague Convention requires that custody of a child be determined under the law of the child’s place of habitual residence. In this case, a Polish woman had an affair with a U.S. Citizen. After overstaying her student visa, she returned with the baby to Poland. Six months later she came back on a visit to see the father from who she was estranged. However, at the fathers request she was refused entry to the U.S. due to his allegation that she was not intending to return to Poland, and the father was given custody of the parties’ infant daughter, based on an ex-parte custody order obtained from an Illinois state court.

The mother then brought suit in federal district court under the Hague Convention for her daughter to be returned to Poland. The father argued that the baby’s habitual residence had become the United States and that the mother had illegally abducted her in the first place. However, the district court and the 7th Circuit disagreed finding that just because the daughter was born in the United States did not make it her habitual residence, nor did the prolonged stay with her father mean the daughter had acquired a new habitual residence. Instead, the court held that since the mother was an illegal alien, she had no choice after the child was born but to leave the United States and take the child back to Poland. It was noted that the father made no effort to obtain custody at that time either in the US or Poland. Therefore, Poland became the child’s habitual residence and under Polish law, an unwed mother has custody of her child

Since the Hague convention requires custody to be determined under the law of the child’s place of habitual residence, the ex-parte Illinois custody order in favor of the father was “irrelevant”. The court affirmed the district judge’s order that the parties’ twenty one month old daughter be returned to her mother in Poland.

Source:  "Where Is The Habitual Residence of a Child Under The Hague Convention?" by Pieter Droppert, posted at the New Jersey Family Law Blog.

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The Chief Administrative Judge for the Seventh Judicial Circuit issued an Administrative Order last Friday, December 8, 2006, to address the scheduling and dismissal of cases in Spartanburg County.  This new Order implements the Administrative Order issued by the South Carolina Supreme Court on May 9, 2006.

Under the provisions of this Order, a written request for a final hearing must be submitted to the Clerk of Court by a party or his/her attorney within 365 days of the date the action was filed.  If a hearing request is not made within that time, the case may be dismissed without prejudice, with all existing orders in that case being considered null and void and no longer subject to enforcement by the Court.  Even the enforcement and collection of child support and alimony payments would be so affected, and any arrearages owed for either may be dismissed.

You may download a *.pdf copy of this new Administrative Order by clicking HERE.

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The Family Law Section Council is seeking input from South Carolina family law practitioners about potential changes to the SC Family Court Rules.  The Coucil has prepared a survey, and its responses will be compiled and submitted to the Family Court Rules Committee charged with overseeing amendments to the Rules. You can download a copy of the survey by clicking HERE .

If you are interested, please complete and return the survey no later than December 8, 2006, to the SC Bar Family Law Section, Attn. Tara Smith, Post Office Box 608, Columbia, SC 29202 or email it to tsmith@scbar.org.  Should you have any questions, please feel free to contact Tara Smith at (803) 799-6653, ext. 146.

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I concur with the following excellent answer given by Trent Wilcox of the Arizona Divorce & Family Law blog to this commonly asked question:

In most cases, neither side in a family law matter gets exactly and entirely what they want from a judge pursuant to a contested hearing or trial. Although all-out victories occur, there is a certain risk in going to court that a judge will not give either side what they want. But if you lose on an issue very important to you, what can you do?

First, evaluate whether or not the judge really ruled wrongly. If the judge did nothing wrong and just believed the other side's case had more merit, there may not be any recourse. Child custody decisions are often made this way because the cases often boil down to "He said, she said," situations. The judge has to make a decision and does, even though one (or both) sides may not like it. However, if you believe the judge abused his discretion, made a mistake in interpreting the law or some other error, you may be able to do something to change the outcome.

Second, be cognizant that there are various deadlines involved in trying to change/correct a judge's ruling. The deadlines vary depending on the type of corrective action one contemplates. Appeals, for example, require that a Notice of Appeal be filed within thirty (30) days of the final order from which an appeal is sought.

Third, evaluate the different legal routes available. For example, there are special action appeals, regular appeals, motions for reconsideration, motions for new trial, motions for relief from judgment and motions to set aside. Perhaps in another post, I will deal with each of these in more detail but for now, parties should be aware that there are alternative methods of trying to undo a court's ruling, different methods work best for certain situations and stages of the proceedings, and there are always various timeframes/deadlines to consider. If you are going to take action, consult an attorney immediately to make sure you act in time!

Source:  "What If I Don't Like a Ruling on My Case?" by Trent Wilcox of the Arizona Divorce & Family Law blog.

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If you are interested in the growing trend of divorce mediation as opposed to traditional litigation, you should read "Mediate or Litigate: Which is Best for Your Divorce Client".  This article was written by Maria Imbalazano of Stark and Stark in Princeton, NJ for the August 2006 New Jersey Law Journal Family Law Supplement.  You can download this article by clicking HERE.

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In a decision earlier this week, the S.C. Supreme Court declined to enforce a 1997 agreement resulting from mediation between Husband and Wife because the agreement was neither entered into the trial court’s record nor acknowledged in open court.

The Court further held that the Family Court correctly converted Wife’s share in a note to Husband from his real estate company into a money judgment because Husband never assigned the note to Wife and Husband should not be permitted to gain from his failure to assign by now claiming that Wife has not properly sought collection on the note.

The Court reversed the trial court’s decision to award Husband an equitable set-off, holding that Husband is not a party deserving of equitable treatment because of his own misdeeds in dealing with Wife and with the court.

You can read the full text of Buckley v. Shealy by clicking HERE.

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The National Law Journal reports that a recent survey by Ian Best of the 3L Epiphany blog found there were 32 blog citations in 27 court decisions in the last two years. The article's author stated that legal blogs have "come into their own in recent years among lawyers who use them to share with peers the latest developments in legal specialties."

The most noted citation found by Mr. Best was that of Justice John Paul Stevens in his dissent in an important sentencing decision, U.S. v. Booker, 543 U.S. 220 (2005), which cited Ohio State law Professor Douglas Berman's Sentencing Law and Policy blog.

The most recent citation appears to have been on July 31, 2006, where a 9th U.S. Circuit Court of Appeals dissent by Judge Diarmuid O'Scannlain in Harper v. Poway Unified School Dist., 445 F.3d 1166, cited commentary on law Professor Eugene Volokh's blog, The Volokh Conspiracy, on viewpoint discrimination and the First Amendment.

There are many "scholarly" blogs out there, and I believe that these citations indicate that the Court is beginning to realize the excellent work being done on these blogs, especially those by law professors. I anticipate this trend continuing, with citations to blogs becoming much more frequent in the future.

Source: "Judges Cite More Blogs in Rulings" by Pamela A. MacLean, published at The National Law Journal (subscription required).

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Whether it is called a "questioning" (as in Canada) or a "deposition" (as here in South Carolina), the process can be quite intimidating.  Most people are not used to being placed under oath and asked very personal, difficult questions about themselves and their family unit.  If you do not know what to expect and/or are not prepared, it can be a disaster -- both for you and for your case.

Fortunately, help is available.  Your attorney should spend time with you prior to the deposition to explain the process, tell you what to expect, and answer your questions.  You can also use these eight excellent tips from the Ottawa Divorce Blog to help you survive and even succeed at your deposition:

1. Give Precise Answers. If you’re asked how much you earned last year, give a dollar figure. Don’t explain why it was higher or lower than usual, or that it included a bonus. If someone is holding a pen and you’re asked “Do you know what this is?” the correct answer is “yes” not “a pen.”
2. Tell the Truth. Don’t try to outsmart your spouse’s lawyer. Not that your spouse’s lawyer is smarter than you, but they’ve been through this a lot more than you have.
3. Prepare in Advance. Ideally you’d review every document that has been produced in your case. At a minimum, you should be familiar with your financial statement and all the pleadings. Take the time to have your lawyer do a mock questioning of you.
4. Anything You Say Can and Will Be Used Against You. Remember that your questioning can only be used by your spouse’s lawyer to help your spouse’s case. Your lawyer can’t use your questioning to help you. So, don’t worry about trying to argue your case. Just answer the questions you’re asked.
5. “I Don’t Remember” is a Dangerous Answer. Think long and hard before you answer a question with “I don’t remember” (or even “I don’t know”). The problem is that you can be sure your spouse will have a vivid memory of everything you forget. Even if what your spouse says is completely made up, you’ll have a hard time convincing a judge otherwise, because you’ve already sworn that you don’t remember.
6. You’re Not Stupid. Often a lawyer will use unfamiliar terms, sometimes purposefully to confuse you, but oftentimes simply out of habit. If you don’t understand what you’ve been asked, get it clarified. No one will think less of you if you do this, and you may be saving yourself from answering the wrong question.
7. Your Lawyer Can Only Help So Much. Your lawyer’s role is mainly to ensure that you’re not asked inappropriate questions. So, there may be large periods of time when all your lawyer seems to do is sit there and listen.
8. Don’t Answer Until the Question is Asked. In normal speech, we often start talking once we know what the other person is going to say. At questioning this is a problem, as a reporter will need to write down what two people are saying at once. It’s a good idea to speak loudly and clearly as well so that the reporter correctly records what you say.

Will you still be stressed even if you do all the above? Yes, and you probably won’t sleep well the night before, and after your questioning you’ll probably think of all sorts of better answers you could have given. That’s normal and happens to everyone. But if you keep these tips in mind, your questioning will go a lot more smoothly.

Source:  "How To Succed At Your Questioning (Examination for Discovery)" by Jeffrey Behrendt of the Ottawa Divorce Blog.

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By Order dated August 3, 2006, the South Carolina Supreme Court has amended the procedure for appointing qualified interpreters for non-English speaking persons (parties and witnesses). To comply with the Court's Order, interpreters must:

• Be certified or otherwise qualified pursuant to S.C. Code Section 15-27-155;
• Be appointed by written Order of the Court making the appointment; and
• Be paid the specified hourly rate, with a two hour minimum.

Effective September 1, 2006, the hourly rate will increase from $25.00 to $45.00 per hour for certified foreign language interpreters. The Order does not specify that the hourly rate for "otherwise qualified" interpreters increases as well, so they will apparently remain at $25.00 per hour. The fees for interpreting services may be:

• paid out of funds appropriated to the Judicial Department by the General Assembly;
• paid by one or more of the parties as the Court may direct; or
• taxed ultimately as costs based on the discretion of the Court, with any fees over the $25.00 per hour set by Order of this Court being the responsibility of the County.

S.C. Court Administration maintains a centralized list of certified or otherwise qualified interpreters. However, a party or a witness may use a qualified interpreter who is not on the centralized list as long as the interpreter meets the specified requirements and submits a sworn affidavit to the Court specifying his or her qualifications. You can read the full text of the Order HERE.

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Threats such as "Leave me and I’ll kill the dog" can prevent a battered spouse from leaving his/her home to seek help, according to "Saving Fido" by Arin Greenwood, which was published in a recent ABA Journal eReport.

In response, Maine has become the first state to pass a law giving judges the explicit power to include pets in personal protective orders issued in domestic violence cases, which authorizes pets to be taken into custody and temporarily placed in a foster home for its safety. Apparently, Vermont, New York, and Illinois are all considering similar legislation.

Even before this new law was passed, Maine had already launched a program in 2001 called Pets and Women to Safety (PAWS), which provides foster homes for the pets of domestic violence victims on a confidential basis. At first glance, this might seem to be much ado about nothing, until you consider that Maine State Representative John Piotti estimates that "70 percent of the victims of domestic abuse also have their pets threatened."

Source: Thanks to Jeanne Hannah for her post, "Pets Included in PPOs?," at the Updates in Michigan Family Law blog on this article.

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The South Carolina Supreme Court issued an Order earlier this week governing the amounts that court reporters may charge. Appellate Court Rule 607 has been amended to address Real-Time Transcripts and related issues, and it is applicable to all requests received by a court reporter on or after September 1, 2006. You can read the full text of this Order by clicking HERE.

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I am pleased to present the following post from my law partner, Paul MacPhail:

One question that is frequently asked by our clients is “If I die before I’m divorced, will my spouse get anything from my estate?” Let's take a look...

Consider this example. The wife filed for divorce in June and the divorce was granted on September 27, 1996. The husband died on October 7, 1996, prior to the divorce order being signed and filed with the Clerk’s Office on October 11, 1996. The South Carolina Court of Appeals addressed this situation in Hatchell v. Freeman, and it held that the wife was still the husband’s spouse for the purposes of inheriting from his estate. As a result, the wife was able to make a claim against the estate of the husband for her intestate share, which, if there were no surviving children, would be 100 percent!

What happens in other scenarios? Subject to some exceptions, the following would apply:

• In the above situation, if the husband died after the filing of the divorce decree, the wife would no longer have been a surviving spouse, and she would not have had any right to inherit from his estate, even if named in his will. See S.C. Code Section 62-2-507 (revocation of disposition by divorce or order terminating property rights) and S.C. Code Section 62-2-802 (effect of final orders: Divorce Decree or Decree of Separate Maintenance).

• What if divorcing party makes a new will during the divorce disinheriting spouse and then dies before the divorce decree (or decree of separate maintenance) is filed in the clerk’s office? The surviving spouse would be entitled to an elective share of one-third of spouse’s estate. See S.C. Code Section 62-2-201 (elective share statute).

• What if the deceased spouse’s will pre-dates the marriage and doesn’t mention his/her spouse? Here, the surviving spouse would receive 100% of the estate if there are no children of the deceased spouse, or 50% if there are children. See S.C. Code Section 62-2-301 (omitted spouse provision).

• Are there ways to avoid the consequences of these laws? Yes, there are steps that you can take to protect your heirs and avoid enriching your estranged spouse. You should consult with your family lawyer and/or estate planning attorney to find out the steps you can take in your particular case.

Disclaimer: The above summaries of law are subject to exceptions. Your particular situation may involve facts that would allow for a different result. Consult with an attorney for advice.

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The South Carolina Court of Appeals has issued two opinions in the last six weeks which analyze what is (and what is not) a proper division of marital assets and debts in divorce. Since virtually every divorce involves the distribution of assets and debts, I believe that it is important to take a closer look at this issue.

The division of marital property is in the family court’s discretion and will not be disturbed absent an abuse of that discretion. South Carolina Code Section 20-7-472 provides fifteen factors for the family court to consider in apportioning marital property, and it is within the family court’s discretion to determine how much weight to give each of these factors. On appeal, even if the appellate court might have weighed specific factors differently, the Family Court's apportionment will be affirmed so long as it is fair overall. Even if the Family Court commits error in distributing marital property, that error will be deemed harmless if the overall distribution is fair

In these two recent cases, the Court of Appeals noted that while there is certainly no recognized presumption in favor of a fifty-fifty division of the marital estate, an equal division is an appropriate starting point for a Family Court judge attempting to divide an estate of a long-term marriage. However, the equal division of marital assets can, of course, be altered in favor of one spouse depending on the circumstances of each case.

In Doe v. Doe, the Family Court distributed 70 percent of the marital property to husband and only 30 percent to wife. The appellate court noted that the Wife’s adultery caused the breakup of the marriage, and it was therefore appropriate to consider that factor for equitable apportionment. However, our case law is clear that fault does not justify a severe penalty. Accordingly, the Court of Appeals found that the Wife’s adultery alone did not justify a forty percent differential between her portion of the marital estate and Husband’s portion and that such a lopsided division could only be sustainable if our equitable division laws sanctioned the consideration of fault as a permissible punitive factor, which ours do not.

In Avery v. Avery, the Family Court had awarded 62.5 percent of the marital estate to the husband and 37.5 percent to the wife. However, the Court of Appeals could not discern any special circumstances tilting the equitable division scale in favor of one spouse over the other. The Court noted that this was a lengthy marriage wherein the parties agreed to a traditional "breadwinner/homemaker" arrangement. With such an arrangement, both parties made significant, albeit different, contributions to the acquisition, preservation, depreciation, and appreciation in value of their marital property. Neither party was at fault for the separation, nor does either party earn a significant income. When considering those circumstances, the Court of Appeals found that the Family Court abused its discretion by awarding twenty-five percent more of the marital estate to husband, and it remanded the case so that the marital estate could be divided equally between the spouses.

That is not to say that all long term marriages ending in divorce will necessarily have estates that are divided equally. The Court of Appeals reminded us that the Family Court is charged with looking at all fifteen factors of Section 20-7-472 and that it may give one party a larger portion of the estate based on the circumstances of each particular case.

You can read the full text of Doe v. Doe by clicking HERE and the full text of Avery v. Avery by clicking HERE.

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Today's ATLA L@w News Digest gives the following summary of an article by Tresa Baldas published on August 1, 2006, in the National Law Journal:

"In a case that family law experts fear could set a dangerous precedent, a Michigan teenager is suing his mother to learn the identity of his father. Family law attorneys say the issue of compelling a mother to reveal the identity of the biological father is a new area of law. And depending on how the Michigan judge rules in the case, they say, courts nationally could see a new flood of lawsuits of children suing their parents.

"You are opening the floodgates of litigation," said Richard Crouch of Crouch & Crouch in Arlington, Va., who has been practicing family law for more than 30 years and has sat on several American Bar Association (ABA) and Virginia State Bar family law committees. "The courts haven't got any business concerning themselves with this area, even if there are health concerns. You're opening up too large an area where a lot of the litigation would be useless and frivolous."

I respectfully disagree with the other family law experts referenced in this article. I believe that as a general rule, children have a fundamental right to know who their parents are. Of course, there should be exceptions when such information would not be in the child's best interest (such as situations where the child was conceived as the result of a criminal act), but why would it not be in the child's best interest to know who his/her parents are.

Should the Court not require the mother to disclose the father's identity, I could envision situations where mothers would attempt to use that to their advantage to try to keep the father out of the child's life. The Court should encourage parents and children to have healthy, meaningful relationships with each other, not condone the construction of additional walls which could be used for the opposite reason.

I also take exception with Richard Crouch's assertion that the Court shouldn't concern themselves with this issue "even if there are health concerns." The health and welfare of a child should certainly trump a selfish mother's desire to conceal her sexual partner's identity in virtually every case.

As for Mr. Crouch's fear that the floodgates of litigation might be opened as a result of this case, I am sure that someone made the same statement when it was first suggested that non-custodial parents should be forced to pay child support. However, just because a concept is new and may result in increased litigation should not make it presumed to be wrong or a bad idea.

I would be interested in hearing what my readers think about this subject. Please click on the "Comments / Questions" link to give me your input.

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In a recent case, the S.C. Supreme Court reminded us of two important issues:

1. In order to enforce a provision of an agreement, the terms of the parties' agreement must be properly entered onto the record. Rule 43(k) of the S.C. Rules of Civil Procedure states that no agreement between counsel affecting the proceedings in an action shall be binding unless reduced to the form of a consent order or written stipulation signed by counsel and entered in the record, or unless made in open court and noted upon the record.

2. Family Court is a court of equity as well as a court of law. In this case, the Court found that one party was not entitled to an equitable set-off for overpayment of child support because he had committed misdeeds in dealing with his wife and with the court, which rendered him undeserving of equitable treatment.

You can read the full text of Buckley v. Shealy by clicking here.

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The South Carolina Supreme Court recently discussed when the Family Court may award post judgment interest on past due child support and whether that interest should be simple or compound interest.

Our Legislature amended the applicable statute, S.C. Code Section 34-31-20(B), last year, and it now provides that the legal rate of interest is equal to the prime plus four percentage points, compounded annually, for all judgments entered on or after July 1, 2005. Prior to that time, only simple interest was allowed.

The Court noted that because the Legislature has only recently expressed a clear intent that post judgment interest be “compounded annually,” the Family Court properly denied the request for compound interest in this case because post judgment interest may only be granted from the date each child support payment came due.

You may click here to read the full opinion in Edwards v. Campbell.

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As was widely reported, a fellow in Michigan filed an action earlier this year alleging that he shouldn't be required to pay child support because his ex-girlfriend had a baby against his wishes. He and his supporters were touting this case as the "Roe v. Wade for Men," and asking the Court to rule that Michigan's paternity law violates the Constitution's equal protection clause.

I did not give his action much coverage on my blog, because frankly I thought that his action was so frivolous. Apparently, a federal judge in Michigan has agreed with my assessment. The decision issued earlier this week by U.S. District Judge David Lawson stated "The court finds that the plaintiff's claim is frivolous, unreasonable and without foundation." Further, Judge Lawson granted the Michigan Attorney General's request that the fellow pay the state's legal fees, which are expected to total thousands of dollars.

You can read the full opinion in Dubay v. Wells by clicking here, or you can read more about this case at the following links:

• "Judge Dismisses Landmark Paternity Law Challenge" by David Ashenfelter, published in the Detroit Free Press
• "Judge Dismisses Lawsuit in 'Men's Roe v. Wade' Child Support Case" by Steven Ertelt, published at LifeNews.com
• "'Roe vs. Wade for Men' Case Dismissed as Frivolous" published at the Dowagiac Daily News
  Tags: Children, Procedure
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The S.C. Court of Appeals issued a decision earlier this week, Clay v. Burckle, in which it addressed the requirements of and interplay between the Parental Kidnapping Prevention Act (PKPA) and the Uniform Child Custody Jurisdiction Act (UCCJA). Specifically, this case analyzes the circumstances under which a state may / may not exercise jurisdiction when another state originally issued a custody order.

The PKPA (28 U.S.C. § 1738A) mandates three criteria for a court to retain continuing jurisdiction:

1. that the original custody determination was entered consistently with the provisions of the PKPA;
   
2. that the court maintain jurisdiction under its own state law . . . ; and
   
3. that the state remains the residence of the child or of any contestant.”

South Carolina's version of the UCCJA (S.C. Code Ann. § 20-7-810(a)) provides that if a court of another state has made a custody decree, a court of this State shall not modify that decree unless:

1. it appears to the court of this State that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this subarticle or has declined to assume jurisdiction to modify the decree, and
   
2. the court of this State has jurisdiction.

Since the PKPA is federal legislation, its provisions will govern any conflict between it and the UCCJA. These statutes were enacted with the goals of:

• avoiding conflicting custody decrees between states;
  
• avoiding relitigation of custody decisions of other states in this State insofar as feasible;
  
• facilitating the enforcement of custody decrees of other states.

As the Court of Appeals stated in a previous case, Widdicombe v. Tucker-Cales, South Carolina courts generally give great deference to the jurisdiction of the state that originally ruled on a custody matter, especially when that state attempts to exercise continuing jurisdiction over a custody decree on which it has previously ruled.

You can read the full opinion in Clay v. Burckle by clicking here.

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He who acts like a father, is a father -- if not biologically than at least legally -- the Court of Appeals held in a 5-2 decision imposing "equitable paternity" on a man who wrongly assumed he had fathered a child and acted accordingly. In Matter of Shondel J. v. Mark D., the Court upheld the lower courts in ordering a man to pay child support on behalf of a child he did not father.

The father argued that the imposition of "equitable paternity" effectively saddled him with an involuntary adoption, in violation of the Constitution and contrary to public policy. However, the Court instead focused on the best interests of the child, citing the "potential damage to a child's psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given."

"The issue does not involve the equities between the two adults; the case turns exclusively on the best interests of the child," Judge Rosenblatt wrote. "The Legislature did not create an exception for men who take on the role of fatherhood based on the mother's misrepresentation ... [T]he mother's motivation and honesty are irrelevant; the only issue for the court is how the interests of the child are best served."

Source: "N.Y. High Court Says Mistaken Avowal of Fatherhood Imposes an 'Equitable Paternity'" by John Caher, published at Law.com.

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The S.C. Court of Appeals issued an opinion earlier this week which addressed a spouse's waiver of his/her interest in the other spouse's retirement account. In Stribling v. Stribling, the wife entered into a settlement agreement which provided that the husband would receive both of his IRA accounts. He later remarried and died, having never changed the beneficiary designation on either account from his former spouse to his subsequent wife (now widow).

The widow, as personal representative of Husband's estate, brought an action against the former wife seeking a court order requiring her to waive her claim to the husband's IRA's pursuant to the Divorce Decree. The Court found that the Divorce Decree was clearly and sufficiently comprehensive to establish that the first wife waived any interest in the husband's retirement accounts, which included both of the IRA accounts at issue in this case.

The Court also explained that a separation agreement may preclude a named beneficiary from recovery of an expectancy interest in either of two ways:

1. A named beneficiary may be precluded from recovery when a separation agreement specifically addresses a particular policy/account providing an expectancy interest and the agreement contains language of release applicable to the policy/account; or

2. When a separation agreement provides general language of release without specifically addressing the policy/account providing the expectancy interest, a named beneficiary may be precluded from recovery when the policy/account owner intended for the general waiver to apply to the expectancy interest.

You can read the full text of this opinion by clicking here.

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The South Carolina Department of Social Services has issued its updated, 2006 Child Support Guidelines (CSG). The CSG were approved by the Legislature and signed by Governor Mark Sanford, and they went into effect on June 23, 2006. I plan to have additional posts on the contents of the updated CSG in the future. In the meantime, you can download a *.pdf version of the CSG by clicking here.

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The South Carolina Supreme Court issued an Order on June 21, 2006, which modified the South Carolina Appellate Court Rules to include Rule 511, Rules of Professional Conduct for Court Interpreters. The Preamble to this rule provides states that the goal is to enable the full participation in Court proceedings to those with limited English proficiency or a speech or hearing impairment. You can read the full text of this Order and Rule 511 by clicking here.

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What happens when someone is accused of acting improperly toward a child? Generally, that person is faced with one or more of the following actions:

• The person may be arrested and charged with a criminal offense;

• The Department of Social Services (D.S.S.) may file an abuse/neglect action in Family Court; and/or

• The other parent may file an action in Family Court to modify that person's custody and/or visitation with the child.

Private custody and visitation actions are discussed elsewhere on my blog, but I would like to discuss the interaction between the other two types of cases: criminal cases and D.S.S. actions, which are civil cases. Criminal cases can take months (and sometimes years) to get to trial. However, by statute, D.S.S. cases are generally required to be scheduled and tried in an expedited manner (generally within 35 to 65 days).

The implications of the two cases can be drastically different. Lose the D.S.S. case and you may face restricted access to the children, be required to attend certain types of classes or counseling, and/or be placed on the central registry of abuse and neglect. Lose the criminal case and you could be incarcerated for a long, long time.

In light of these factors, a popular strategy to use when representing a client faced with both a criminal case and a D.S.S. case was to request that the D.S.S. matter be postponed until after the criminal matter was concluded. The reason for this strategy was that most attorneys did not want their client to testify (and be subject to cross-examination) in the Family Court case as long as the criminal charges were pending.

The South Carolina Court of Appeals addressed this very situation in a decision issued last week. In S.C. D.S.S. v. Walter, the appellant raised concerns that he might not be able to testify in the D.S.S. case due to pending criminal charges. The Family Court denied his request to hold the family intervention action in abeyance pending resolution of the criminal charges.

The Court of Appeals held that his decision whether or not to testify, while admittedly a difficult one for tactical reasons, did not implicate either the South Carolina or United States Constitution. It found that it was not a constitutional violation for the removal action to proceed to trial while related criminal charges were pending against the appellant, who chose not to testify in the removal action due to the pending criminal charges.

The Court appeared to place a good deal of weight on the statutory mandate for an expedited resolution in Family Court intervention actions for the protection of an abused or neglected child. However, I have several concerns with the Court's analysis in that regard:

• The allegations are merely that -- allegations and nothing more -- until they are proven.

• The accused can agree to certain conditions (such as no contact with the alleged victim) which will adequately protect the child pending resolution of the criminal charges.

• The rights of the accused should not be ignored, and I would argue that the accused constitutional right to liberty (and the threat of being deprived of it in the criminal matter) should perhaps trump the desire for an expedited resolution in the Family Court matter.

You can read the Court's decision in S.C. D.S.S. v. Walter by clicking here.

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Pursuant to an Administrative Order issued on May 9, 2006, by Chief Justice Jean Hoefer Toal of the South Carolina Supreme Court, all domestic relations and juvenile cases in South Carolina (with the exception of DSS Abuse and Neglect cases) shall be disposed of within 365 days of their filing. The Order further provides that the Chief Administrative Judge for the Family Court in each county shall direct and oversee the monitoring of all cases which are older than 365 days and for which no final hearing has been requested.

As discussed in a previous post on my blog, the old rule was that cases were required to be removed from the active docket if a final hearing had not been scheduled or requested within 270 days of the date the case was filed. However, as discussed in my prior post, the old rule was rescinded by another Administrative Order issued on February 27, 2006, by Chief Justice Toal.

I would point out that there appears to be a difference between the old and new rules beyond extending the deadline from 270 to 365 days. Specifically, the language in the new Order requires that cases now be "disposed of," whereas the old rule only "removed cases from the active docket." The interpretation, importance (if any), and implication of this distinction has yet to be determined. Chief Justice Toal's new Administrative Order is effectively immediately and may be read here.

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In a decision issued earlier this week, the South Carolina Supreme Court discussed the relationship between common law marriage and the probate process. In Thomas v. McGriff, the question was whether or not Floyd Thomas and Ella Mae McGriff were common-law spouses on the date of Ella Mae's death.

The Court held that the Family Court had subject-matter jurisdiction to determine whether Floyd was Ella Mae's common-law spouse on the date she died. Although the woman's probate estate was open, it was the existence of the marriage, not heirship, that was the issue before the Court.

The Court concluded:

• the Family Court has exclusive subject-matter jurisdiction to determine an action for a declaration that a common-law marriage exists or existed;
  
• the probate court has exclusive subject-matter jurisdiction to determine heirs, which might involve the issue of whether a common-law marriage existed; and
  
• whether the family court or probate court has jurisdiction over the issue of common-law marriage depends on the nature of the action in which the issue arises.

You can read this opinion by clicking here.

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Let's face it, sometimes there are cases that really should be resolved, but for one reason or another, they just can't be. This can be extremely frustrating for the skilled family law attorney, and it can also result in a case becoming (unnecessarily) expensive for the parties.

Jeffrey Behrendt of the Ottawa Divorce Blog recently published an article explaining the eight most common reasons this can happen. After each reason, I have listed both Mr. Behrendt's comments along with my own analysis.

1. The other divorce lawyer.

   Behrendt: I do agree with the common perception that lawyers can make things more difficult than need be. The reasons for this are somewhat complex. Some lawyers are overly aggressive. This isn't solely the lawyer's fault - clients going through a divorce often want their lawyer to be aggressive. Aggression isn't the only problem - an inexperienced lawyer may not be reasonable simply because they don't know what a local judge may decide.

   Stevens: The opposing attorney can make a world of difference in a case -- for better or for worse. In Family Court, each side has the ability to dictate to a certain degree how the case will be handled. Some attorneys rarely settle their cases, and every issue with them may be a battle. On the other hand, some attorneys have a reputation for folding as soon as the going gets tough. Some attorneys are more cooperative than others when it comes to producing necessary information. Since we cannot control whom the other side hires to represent him, we often have to play the hand we're dealt in this area.

2. Unreasonable clients.

   Behrendt: One thing about being a divorce lawyer is that even though you've dealt with a situation many times before, a client knows more about it because a friend of a friend said something. Whether you like what the law has to say or not, for most middle-class couples in fairly average situations, the law is pretty clear. But it can be difficult to resolve a case if one spouse doesn't agree with what the law is. (As a side note, I agree that in a lot of cases, the result isn't fair, but that's a political, not a legal, issue).

   Stevens: All clients bring their unique life experiences and expectations to their case. Some people cannot be pleased under any circumstances, and they should be avoided as clients at all costs. When I meet with a new person for a consultation, one of the key things I want to accomplish is to determine what sort of client he/she will be. If I do not like the person's attitude or personality, I will not represent them -- no matter how high the fee may be. Having reasonable clients is one of the things that I enjoy most about my work, and I am not willing to compromise on this issue.

3. Child Custody Disputes.

   Behrendt: In most cases, you can say it's just money, and move on. With the children, you can't do this. Custody disputes are one of the most difficult types of case to settle.

   Stevens: Custody cases are certainly complex and difficult, and many times they cannot be settled -- especially when both sides genuinely and legitimately want full custody of the same child. 'Tis has been the case since the times of King Solomon.

4. Delay.

   Behrendt: It's usually in one spouse's interest (normally the payor) to delay settlement, even if it is just a matter of postponing the inevitable, while it's best for the other spouse (normally the recipient) to resolve things as quickly as possible. Add in delays because each spouse's lawyer is busy at a different time and it's no surprise that divorce cases aren't resolved quickly.

   Stevens: With apologies to Mick Jagger, time is almost always on someone's side in family court cases. In custody cases, the party with temporary custody is certainly in no rush to get to a final hearing where he/she may risk losing it. Sometimes, one party simply does not want the marriage to end, and that party does not want the divorce hearing to ever actually happen. Some attorneys want to keep the litigation going on because that way his/her fees continue to grow.

5. Revenge.

   Behrendt: Often the divorce process is used as a way of getting revenge on a spouse. Yes, you really can make you're spouse's life miserable through the divorce process if you wish to. And despite the high financial cost of doing this, many people choose to go this route. This is particularly the case where one spouse has had an affair.

   Stevens: Amen, brother. I have actually had potential clients tell me "I want you to make my spouse's life hell in this case." They see the potential of abusing the legal process to satisfy their twisted desire to get back at their spouse, and certainly things such as depositions, discovery, etc. could be used toward that end.

6. Legally Aided Spouse.

   Behrendt: Normally, high legal fees are an incentive to settle a divorce case quickly. Every dollar in legal fees is a dollar that is taken away from the children and from both spouses. However, where one spouse is legally aided and the other one isn't, one spouse bears all the financial consequences of a divorce battle while the other's finances aren't affected.

   Stevens: Many times, the spouse with financial means will attempt to outspend or wait out the spouse without them. There is almost always some disparity in resources, and that aspect must be analyzed early and often in such cases.

7. Spouse Not Working.

   Behrendt: Where one spouse isn't working - say they're a homemaker or disabled - I've found that cases are much more difficult to resolve. The non-working spouse seems to spend an inordinate amount of time thinking about the divorce case, and coming up with ways to make it complicated.

   Stevens: This is very insightful observation by Mr. Behrendt, and I believe he makes a good point. Sometimes it is good for a party to have a job and other responsibilities/obligations to keep his/her mind from obsessing about the divorce case. If a party has nothing to do but focus on his/her problems, the divorce (as with any other stressful situation) can become overwhelming.

8. Interference from family.

   Behrendt: I've had a number of cases where I think that the two spouses could actually work things out amicably - maybe even without the help of divorce lawyers. But there is a meddlesome family member who just won't let this happen, and who seems to have a large influence in one spouse's life. I find that this is particularly the case for younger couples, who probably still have a closer attachment to their parents than do older couples. It is also particularly prevalent in couples of Far Eastern origin where family has quite a different role and meaning in their lives than for people who are born and raised in Canada.

   Stevens: Younger clients, typically in their early to mid-20's, are particularly susceptible to this type of interference. Parents, older siblings, or others may think that they are trying to help "protect" the client, but often they are only agitating an already tense situation. In other cases, third-parties sometimes manipulate parties to further their own agendas.

Source: "8 Roadblocks to Settling Your Divorce" by Jeffrey Behrendt published at the Ottawa Divorce Blog.

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In Humphrey v. Humphrey, the U.S. Court of Appeals for the Fourth Circuit clarified that a parent's petition under the International Child Abduction Remedies Act (ICARA) seeking return of the his/her children only needs to establish the children's "habitual residence" by a preponderance of the evidence, and not beyond a reasonable doubt.

Mr. Humphrey filed a petition under the ICARA seeking the return of his children to the United Kingdom. He alleged that his wife violated the Hague Convention on Civil Aspects of Child Abduction by taking the couple's children to live in the United States. The District Court stated that Mr. Humphrey was required to prove "beyond a reasonable doubt" that the children were "habitually resident" in the United Kingdom at the time of their removal and concluded that Mr. Humphrey's evidence fell "short of showing that."

ICARA requires a petitioner seeking return of an abducted child to show "by a preponderance of the evidence" that "the child has been wrongfully removed or retained within the meaning of the Convention." 42 U.S.C. ? 11603(e)(1). The Hague Convention, in turn, requires a petitioner to demonstrate that: (1) the children were "habitually resident" in petitioner's country of residence at the time of their removal; (2) the removal was in breach of petitioner's custody rights under the law of his home state; and (3) the petitioner had been exercising those rights at the time of removal. Miller v. Miller, 240 F.3d 392 (4th Cir. 2001).

Because Mr. Humphrey need only establish the children's habitual residence by a preponderance of the evidence, the Court of Appeals vacated the judgment of the District Court and remanded the case for further proceedings consistent with this opinion. You can download a *.pdf version of this decision here.

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In an important decision earlier this week, the U.S. Supreme Court significantly narrowed police search powers by ruling that officers cannot search a residence without a warrant unless both spouses agree to let them do so. In other words, if one occupant tells them no, the search is unconstitutional without a warrant.

The Court was sharply divided on this 5-3 opinion, with the majority portraying it as striking a blow for privacy rights and gender equality, while the dissenters said it could undermine police efforts against domestic violence. You can read more about this case, Georgia v. Randolph, at:

• The New York Times
  
• The Boston Globe
  
• Jurist Legal News & Research
  
• New Jersey Family Law blog

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Family Court cases will no longer be stricken from the active docket after they have been pending for more than 270 days. Instead, all such cases will now remain pending until they are dismissed or a final order is issued.

Pursuant to an administrative order issued on June 5, 1992, by former Chief Justice David Harwell, cases were required to be removed from the active docket if a final hearing had not been scheduled or requested within 270 days of the date the case was filed. If a case was stricken under those circumstances, it could be restored to the active docket if good cause could be shown.

On February 27, 2006, Chief Justice Jean H. Toal rescinded the prior administrative order, and effective immediately, cases that are more than 270 days old will no longer be struck in family court. Any cases that were struck prior to March 1, 2006, may still be restored pursuant to the terms of the 1992 order. You can read a copy of Chief Justice Toal's Order here.

What does this mean for litigants in Family Court? It means one less administrative hurdle for their attorneys to deal with and thus more time which can be devoted to the issues in the case itself. It should also reduce fees and costs slightly, as the attorneys will no longer have to prepare an Order to Restore, pay the associated filing fee, etc.

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Unless you have actually had to deal with D.S.S. (the Department of Social Services), you have absolutely no idea how frustrating it can be. The gap between their stated purpose and what actually happens in some cases is absolutely appalling. I know this because I am regularly retained to represent parents whose children have been wrongfully removed or are being wrongfully withheld from them by D.S.S.

A case decided earlier this week by the S.C. Court of Appeals gives a glimpse into what parents can sometimes experience when dealing with D.S.S. The following statements are taken directly from this Order, and they are quite critical of D.S.S.:

• "In this case, the record demonstrates the Department's blatant indifference to Father's plight."

• "... it appears the Department conducted the case as if Father did not exist."

• "The Department did not recommend a treatment plan for Father even though, by Department caseworker Christopher's own admission, one could have been recommended."

• "Again, the Department did not contact Father, even though he risked losing his parental rights to Child."

• "For reasons even the Department was unable to explain ... ."

• "... it took the Department over three years to make contact with Father, and even then, the communication occurred only because Father contacted the Department as a result of his extraordinary efforts to locate Child ... ."

In Charleston County DSS v. Jackson, the Court of Appeals reversed the Family Court and refused to terminate the father's parental rights. This case contains a good discussion of the grounds under which a parent's can be terminated and those under which it can't (or shouldn't). You can read this opinion here.

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Is there a statute of limitations for an action to determine paternity? While some states have such limitations, the South Carolina Supreme Court found in Smith v. Doe that there is no statute of limitations that is applicable for an action to determine paternity. Specifically, the Court found that the legislature did not intend to impose a statute of limitations on paternity actions because it did not specifically include one in the statutory scheme. This decision can be found here.

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Earlier this week, the South Carolina Court of Appeals addressed the novel question of whether an annulment, which decrees a pre-existing marriage void ab initio, can be used as a defense in an action to void a marriage as bigamous, because the annulment dates back. In Lukich v. Lukich, the Court found that an annulment that declares a pre-existing marriage void ab initio does not relate back, so as to give validity to a marriage that was bigamous before the annulment. As a result, the Court held that the trial court did not abuse its discretion in barring the appellant from using her annulment decree as a defense to the respondent's bigamy action or by ruling that the respondent did not have to comply with the temporary order for spousal support, pending the outcome of his motion to vacate that order. The full text of this opinion is available here.

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The South Carolina Supreme Court recently had the opportunity to address the level of participation that a non-relative may have in an child abuse / neglect case. In Morris v. Monceaux, the Court noted that while a non-relative may not stand on precisely the same footing as a parent or close relative, it is apparent that the Legislature contemplated that such persons may often play a crucial and important role in the life and well-being of a child, particularly when parents or relatives turn away from the child. Accordingly, the Court found that a non-relative who has a real, material, or substantial interest in the long-term custody and potential adoption of a child has standing to participate in a Family Court proceeding addressing those issues. This standing is not diminished by the non-relative's failure to comply with a treatment and placement plan.

In permanency planning hearings, the Family Court is required by S.C. Code § 20-7-766(C) to find compelling reasons for approval of a permanency plan which does not involve reunification of the child with the parent or custody or guardianship with a fit and willing relative. It is error, in the face of a request by a party for an evidentiary hearing, for the Family Court to issue a permanency planning order based on an examination of the file and pleadings, the arguments of counsel, and the GAL's report, but without considering testimony and evidence at a hearing where witnesses are subject to direct and cross-examination. The full text of this opinion is available HERE.

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A recently decided case, Upchurch v. Upchurch, includes a thorough discussion by our Supreme Court of the principles included in establishing and modifying child support in South Carolina.

The key points addressed were:

• Generally, a petition is treated as an action to establish child support if the issue was not addressed previously in the separation agreement or the divorce decree. When child support has been addressed in a prior Order, the petition is considered one for modification.

• It is possible for the issue of child support to be held in abeyance in a divorce decree or incorporated separation agreement. However, notwithstanding any provisions of a separation agreement, the family court retains jurisdiction to do whatever is in the best interest of the children.

• The Family Court may always modify child support upon a proper showing of a change in either the child's needs or the supporting parent's financial ability. The party seeking the modification has the burden to show changed circumstances. In cases where the child support award is based on a settlement agreement, this burden is increased.

• Changes that were within contemplation of the parties at the time the child support was initially determined are not sufficient upon which to base the modification of a child support award.

• General testimony regarding increased expenses, without specific evidentiary support, is an insufficient showing of changed circumstances.

The full text of this case may be read HERE. A discussion of the other aspects of this decision may be found in this post at the South Carolina Appellate Law Blog published by William J. Watkins, Jr. Mr. Watkins' blog is the third legal blog in South Carolina and is well worth tracking.

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In South Carolina, the Department of Social Services (DSS) is the agency charged with child protective services in cases where there are allegations of abuse or neglect. I handle a great many cases against DSS, in which my clients claim have been wrongfully accused of misconduct or in which their child was wrongfully removed from their home.

Dealing with DSS can be frustrating in many respects, but one of the more frustrating things I encounter is when DSS caseworkers handle factually similar cases in completely different manners. Apparently, this phenomenon is not unique to South Carolina, as evidenced by an article published last week in the Star Tribune (Minneapolis - St. Paul, MN): Child Protection: Two Families, Two Different Outcomes.

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The Arkansas Supreme Court recently addressed the issue of what happens when a non-parent attempts to bring an action for paternity and child support against a purported father after the biological mother dies. In Watt v. Office of Child Support Enforcement, the Court found that when the mother is deceased only corroborating testimony concerning the conception, birth, and history of the child is required in order to state a prima facie case of paternity (which then leads to genetic testing).

Continue Reading...

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What relief is available to a party who believes that the opposing party has violated the terms of a Court Order? The proper remedy is to file a Rule to Show Cause (RTSC), which is an Order issued by the Court that is supported by an affidavit or verified petition. This process can be an extremely effective tool to prevent future violations of Orders and/or to force a party to comply with an existing Order.

The aggrieved party begins the RTSC process by filing a petition, in which he/she alleges that the other party has violated an existing Order. The petition must be specific as to the nature of the violation and point in time at which the violation allegedly occurred. The Court then reviews the petition and signs an Order, which requires the other party to appear and respond to the allegations. If that party fails to appear at the hearing, the Court may issue a Bench Warrant for his/her arrest, as the failure to appear is in and of itself a contemptuous act.

The party accused of violating the Order may file a Return to Rule to Show Cause, in which he/she may deny the allegations and put forth defenses, such as challenging jurisdiction. That party may also bring a RTSC if he/she believes that the aggrieved party has also violated the terms of a prior Order. The process is similar to that set forth above, but it must also include a verified request and an Order requiring the original party to appear and respond to his/her allegations.

If the Court finds that a party has willfully violated the terms of a prior Order, it may sentence that party to any (or all) of the following: a jail term of up to one year; a fine of up to $1,500; and/or up to 300 hours of community service. The Court can (and typically does) also require the at-fault party to pay all or part of the attorney's fees and costs of the party bringing the RTSC. Finally, the Court can (and generally does) require the at-fault party to remedy or rectify the situation complained about in the RTSC.

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The Supreme Court heard arguments this week in Ayotte v. Planned Parenthood of Northern New England, which deals with a New Hampshire law that requires a parent to be told before a daughter ends her pregnancy. This is the first abortion related case to come before the Court in five years, and it is the first in the brief tenure of new Chief Justice John Roberts. The case does not challenge the 1973 Roe v. Wade ruling that declared abortion a fundamental constitutional right, and observers believe that the justices seem to be seeking a compromise that would avoid breaking new ground. You can read more about this case in the USA Today article, Wikipedia listing, and CNN.com article.

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The South Carolina Supreme Court ruled earlier this week that there is no statute of limitations for an action to determine paternity. In Smith v. Doe, the Court disagreed with Ms. Smith's argument that a paternity action was barred by South Carolina's general statute of limitations. While acknowledging that some jurisdictions have placed a statute of limitations on such actions, the Court noted that the legislature did not intend to impose a statute of limitations on paternity actions because it did not specifically include one in the statutory scheme. The full text of this opinion is available here.

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In most Family Court matters, a temporary hearing is held within two to six weeks of the case being filed. If a final hearing has not been requested within 270 days of the date the case is filed, it is typically administratively dismissed. So what happens to the Temporary Order? Does it expire or do its terms continue?

I contend that the terms of a Temporary Order continue until a subsequent Order is issued, and the vast majority of Family Court judges share the same opinion. Our appellate courts have not specifically addressed this issue, and it has been the subject of discussion and debate at legal seminars and conferences in recent years.

Our Supreme Court issued a decision earlier this week (Widdicombe v. Tucker-Cales, Opinion No. 4022), which has somewhat clarified this issue. In this case, the Court held that the prior Temporary Orders had the practical effect of a Final Order, although it referenced the unique factual circumstances of that case.

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What happens when an attorney has hearings in two different Courts at the same time? Unfortunately, this is not uncommon for Family Court attorneys. Just today, I found out that a two day contested divorce and custody case scheduled for next week had to be continued. One of the other attorneys just received notice of a trial in a different Court, and even though our case had been scheduled for several months it will not go forward next week.

As luck would have it, my good friend, Dave Swanner of the South Carolina Trial Law Blog, posted today on this very topic -- Which Court Takes Priority if You Have a Scheduling Conflict?

Rule 601 of the South Carolina Rules of Appellate Court lists the hierarchy of Courts in our state:

Continue Reading...

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