One hundred things I don’t know about South Carolina family law

Posted Monday, November 14th, 2011 by Gregory Forman
Filed under Alimony/Spousal Support, Attorney's Fees, Child Custody, Child Support, Contempt/Enforcement of Orders, Department of Social Services/Child Abuse and Neglect, Divorce and Marriage, Equitable Distribution/Property Division, Family Court Procedure, Jurisprudence, Mediation/Alternative Dispute Resolution, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public, Paternity, South Carolina Specific

This blog is inspired by myriad important family law issues that current South Carolina case law and statute don’t adequately answer.  None of these questions is merely academic, as each has come up at least once in my eighteen years of family law practice.  I have firm opinions on the correct answer to some of these questions (the hypertext links are to writings in which I have discussed the issue, even if it’s buried in a footnote), and can make educated guesses about the ultimate answer to many, but there’s currently no definitive answer to any.

All of these questions are capable of definitive answer by case law or statute.  That none of them are is due to our legislature’s and appellate court’s continued–and inexplicable–preference for vesting great discretion in family court judges.  Huge swaths of family law–equitable distribution; alimony; child custody–vest the family court judge with tremendous discretion.   Child support is the one area of family law in which federal law requires clear guidelines and child support disputes tend to be less expensive to resolve than other disputes because attorneys can more reasonably predict outcomes.  However, when the courts have great discretion in fashioning decisions, it becomes much harder to predict outcomes, and gives parties more incentive to litigate.

These unresolved issues in family law range from the highly technical (treatment of subchapter S income that doesn’t increase a parent’s spendable income) to grandly philosophical (what is a father?).  Some of these questions have clear(er) answers in other states.  Yet, even for issues that call for clear rule setting (when should a party in default be allowed to seek relief?; when should the court employ shared custody child support guidelines) our appellate courts have merely vested our family courts with discretion without providing any guidance on what factors should shape that discretion.  With South Carolina being a state of below average median income, jurisprudence should encourage clear rules in order to reduce legal fees.  Too often our appellate courts favor the vesting of great discretion in family court judges over providing clear guidance to the family court bench and bar.  Unless the goal is to maximize judicial power, this prudential preference is inexplicable.

Divorce

1. Does having sex with one’s spouse during the one year separation period set the clock back to zero on the no fault ground for divorce?

2. What is the burden of proof for adultery?

3. How much detail does the other spouse need to know for adultery to be condoned?

4. Does any sex between the parties after one party has knowledge of the other’s adultery condone that adultery?

5. How much subsequent “fault” does there need to be to negate condonation?

6. Is “third base” adultery?

7. Is “second base” adultery?

8. How long can a spouse remain in the home after the last physical abuse incident without that physical abuse being considered condoned?

9. Are postnuptial reconciliation agreements valid?

10. Can the family court order a spouse out of the house on an ex-parte basis?

11. Is the law prohibiting adultery unconstitutional?

Alimony

12. If the burden of proof for an adultery divorce is “clear and convincing evidence” is that also the burden of proof to invoke adultery’s bar to alimony?

13. If, after the court issues a final order of separate maintenance or divorce, the supported spouse commits adultery, and that order is later vacated or reversed, does that adultery bar alimony?

14. If the parties enter a separation agreement that a supported spouse repudiates prior to court approval, would that supported spouse’s post-agreement adultery bar him or her from receiving alimony?

15. If the supporting spouse is not “at fault” for the breakup of the marriage and is willing to take the other spouse back, can the family court award alimony?

16. Is refusal to engage in sexual intimacies a fault factor in determining alimony?

17. Is having close personal friendship that one’s spouse disapproves of, especially if that friendship is with a member of the opposite sex, a fault factor in determining alimony?

18. Is there a retirement age for alimony obligors?

19. Do the statutory factors for setting alimony apply to actions to modify alimony?

20. How does length of a marriage affect the amount of monthly alimony?

21. Does length of marriage affect the amount of alimony, whether the alimony should be rehabilitative or permanent, or both?

22. If a spouse wilfully undertakes an action that permanently impairs his or her earning capacity, can the previous earning capacity be used to set alimony?

Paternity

23. When can a husband disclaim paternity of a child born of the marriage that is not biologically his but that he has raised as his own?

24. When can a wife disclaim a husband’s paternity of a child born of the marriage that is not biologically his but that he has raised as his own?

25. How should the court determine who is the “legal” father of a child when a biological father claims paternity of a child born to a married couple and both the husband and the wife want the child to the husband’s child?

26. How should the court determine who is the “legal” father of a child when that child is born of an intact marriage but is the biological child of another man and neither the biological father nor the husband want to accept legal paternity?

Child custody/visitation

27. In custody cases, does the family court have authority to make legal custody type decisions for a child (e.g., which school the child will attend; whether a child can get elective surgery) or does the court merely have authority to decide who gets to decide?

28. In custody cases, can the family court issue restraints against third parties (grandparents; step parents) that they do not consent to?

29. Does the non custodial parent have the right to delegate his or her visitation to a third party?

30. Is there a difference between child custody and guardianship of a child?

31. When should sibling visitation be awarded?

32. How many sexual partners in how short a time period does it take to make a parent’s sexual behavior “promiscuous,” and therefore relevant without a showing that the behavior affected the child?

33. Is a parent’s pornography use relevant on the issue of custody without any showing that this use had any effect on that parent’s parenting or on the child?

34. Can grandparent visitation still be awarded merely because the grandparent’s child is deceased?

35. If a seventeen year old moves in with the non-custodial parent does the family court have any authority to make the child move back?

36. Can one arbitrate child custody issues?

37. Does the restraint against exposing children overnight to unmarried romantic companions deny due process or equal protection to homosexuals (since they cannot marry)?

38. Is the guardian ad litem allowed to present hearsay statements of the child over one or both parties’ objection?

39. Can and should the court ever appoint independent counsel for an older child involved in a custody dispute?

40. Is having custody of one’s own child per se emancipation?

41. In non abuse and neglect cases, can the family court impose restraints on parents that neither party wants?

42. Can the court consider a parent’s religious observance, independent of ancillary issues such as that observance’s impact upon a child, as a factor in awarding custody?

43. How long does a child have to be in a third party’s physical possession before the Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456, 458 (1989) factors become applicable?

44. What aspects of a parent’s homosexuality, if any, are relevant in custody determinations?

45. In custody battles between parties who are not the child’s parents, is preference given to someone who is a blood relative of a child?

46. In custody and visitation disputes between a parent and a third party, does the family court have to show harm before imposing restraints or obligations on a parent?

Child support

47. What factors should the court consider in setting child support when the parents’ combined income is outside of the guidelines?

48. Other than a history of late payment, what factors should the court consider in deciding whether to make a party pay support through the court (and incur a 5% administrative fee)?

49. If a parent wilfully undertakes an action that permanently impairs his or her earning capacity, can the previous earning capacity be used to set child support?

50. How should contribution towards private school tuition impact application of the child support guidelines?

51. How should child support be set when some of the parties’ children are in a shared custody situation and some are in a sole custody situation?

52. Other than number of overnights, what criteria should the family court use in deciding whether to use Schedule A or Schedule C child support guidelines?

53. When two mothers are seeking child support from the same father, should the first child support calculation be based on the oldest child or the first to file?

54. Should a parent’s undergraduate school loan payments impact income for setting child support?

55. Should a parent’s graduate or professional school loan payments impact income for setting child support?

56. Is subchapter S Corporation income used to pay taxes still income for child support purposes if the parent has a controlling interest in the S Corporation?

57. Is subchapter S Corporation income used to pay taxes still income for child support purposes if the parent does not have a controlling interest in the S Corporation?

58. Can the court order child support for a disabled adult child if that child had the disability before age eighteen but the condition only became disabling after age eighteen?

59. Is court-ordered support for a disabled adult child still constitutional after Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010)?

60. If an eighteen year old high school student moves in with the non-custodial parent, does that give rise to child support modification?

61. Can the family court make an initial child support determination for an eighteen year old who is still in high school?

62. Does evidentiary or proof laches remain a defense to child support or alimony obligations?

Equitable distribution

63. How much can the court deviate from a 50/50 division of marital assets in a short term marriage?

64. How can the family court take jurisdiction over the parties’ property without first determinating it is marital?

65. Is it just the owner’s intent or is it the parties’ intent that determines whether property is transmuted?

66. Can the family court award property to one spouse at a lower value than the other spouse is willing to take it for?

67. How should the court value and equitably divide pets?

Family court procedure

68. When filing to modify support or custody, is venue proper in the county of the final order, the county of the defendant’s residence, or both?

69. Unless the previous final order explicitly states it, how does one determine where a change of circumstances is “anticipated” or “unanticipated”?

70. Is an adverse finding from invoking a 5th amendment privilege against self incrimination mandatory or discretionary?  If discretionary, what factors should the court consider in exercising this discretion?

71. Is attorney-client privilege waived on attorney fee issues if a party is seeking attorney’s fees?

72. Is a mediator allowed (required) to testify if a party claims he or she was coerced into executing an agreement during the mediation?

73. Is a mediator allowed to inform the court that a party mediated in “bad faith”?

74. In responding to a request for production, who is responsible for retrieval and copying costs for records that are in a party’s control but not in that party’s possession?

75. What is the effect of default in family court?

76. Can the court reconsider temporary orders merely because a party disagrees with the ruling?

77. If child support and alimony obligations are judgments, why aren’t temporary orders on these issues immediately appealable?

78. Since temporary custody orders will become moot upon the issuance of a final order, why aren’t they immediately appealable?

79. Can one issue subpoenas duces tecum without an order of discovery? Evidently the answer is no: In the Matter of Margaret D. Fabri

80. Does one have a “due process” right to demand testimony at temporary hearings?

81. Is a statement that is signed and notarized but not “sworn” before a notary a valid affidavit?

82. Are all family court motions “temporary motions” as defined by Rule 21, SCRFC?

83. Can the family court issue a temporary order providing relief that is retroactive to the date of filing of the motion?

84. Does one have the right to ask leading questions of one’s client on “cross-examination” if the opposing party called the client as his or her own witness?

85. Is service of motions, affidavits or orders via facsimile or email valid service?

86. Does “ex parte communication” merely refer to communication with a judge that takes place without the other party’s knowledge or presence or does it refer to all communications that take place outside of court or formal motion proceedings?

87. When a family court judge questions a witness, can one raise evidentiary objections?

88. Where a motion for an order for protection from domestic abuse is brought in an ongoing action, does the hearing proceed via testimony or affidavit?

Abuse and neglect cases

89. Is the “preponderance of the evidence” burden of proof for abuse and neglect cases unconstitutionally low?

90. Does the child hearsay exception of S.C. Code §19-1-180 violate the 6th Amendment?

Attorney’s fees and costs

91. When child custody jurisdiction is based solely upon the child’s residence, and not upon the defendant’s residence, does the family court have jurisdiction to make the defendant pay the plaintiff’s attorneys fees?

92. When child custody jurisdiction is based solely upon the child’s residence, and not upon the defendant’s residence, does the family court have jurisdiction to require the defendant to pay any costs (such as guardian fees)?

93. Does Rule 54(d), SCRCP give a party a right to seek bifurcation of attorney’s fees, with that issue to be resolved after the final judgment?

94. Should the fact that the lower income party retained a higher charging attorney be a factor in awarding attorney’s fees?

Contempt

95. Does the “clear and convincing” burden of proof for contempt just go to proving contempt or does it also go proving damages?

96. Can contempt of custody, visitation and child related restraint issues truly be remedied by civil rather than criminal sanctions?

97. Are the parties’ abilities to pay fees a factor in awarding fees from a contempt action?

98. What is the proper procedure to enforce compliance with a court order when the other party’s non-compliance isn’t willful?

99. When an opposing party cannot comply with a provision of a final order that is non-modifiable, what remedies are available (that is, can the family court then modify the provision at the other’s party’s request)?

100. Can the “unclean hands” defense to contempt be used whenever the moving party has failed to fully comply with any provision of the order or is it only effective if the moving party’s non-compliance is on the same issue or frustrated the defending party’s compliance?