Hold on pardner, where’s the fire?

Posted Thursday, March 1st, 2012 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

One of the hardest tasks of family court client control is counseling clients to be patient when they want immediate results.  This task is rarely more complicated then when a client is slapped with an ex-parte order.  Yet rushing into the defense of the other party’s expedited hearing often doubles-down on disaster.

The typical ex-parte order that generates such angst are ones that change custody.  Because the remedy of ex-parte relief is so severe and done with minimal due process, the court schedules hearings to resolve the issues raised in the ex-parte order on an expedited basis–frequently on one or two days notice.  However this short notice is to preserve the defending party’s due process rights, not to give the moving party the additional advantage of provide the defending party minimal time to prepare.

The South Carolina family courts are extremely inconsistent in their approach to hearings on short notice that involve substantive relief.  Some judges will only deal with emergency issues and will allow a subsequent temporary hearing on all substantive issues.  Other judges will deal with all issues and treat the hearing as a normal temporary hearing, with their order only subject to modification at trial or upon a substantial change of circumstances (and family court judges are very reluctant to modify previous temporary orders from another judge).  Some judges blend the two approaches.  Often judges aren’t even consistent in their approach.  Thus the safest approach is to presume that whatever the result of the expedited hearing on the ex-parte order, the ruling might remain in effect for a year or more.

Given this expectation, the benefits of a quick hearing to reverse the ex-parte order are frequently outweighed by the risks of heading into that hearing with too little time to prepare.  Instead, a better approach is to request a continuance with the stipulation that the ex-parte order will remain in effect until the rescheduled hearing.  In my experience the court always grants the request, generally rescheduling the temporary hearing within a week or two, and the opposing party rarely opposes it.  One can easily show prejudice to one’s client in being asked to prepare for an important hearing on short notice and by agreeing to continue the ex-parte relief until the rescheduled hearing, the moving party can’t show prejudice from the continuance.  The moving party typically looks bad even opposing the continuance request, as it makes that party look as though he or she is trying to obtain an unfair advantage from the short notice.

The times I have had enough sense to get my client to slow down and give me more time to prepare it has generally worked to my client’s advantage.  While my client endures a bit of pain by living for a week or two under the ex-parte order, he or she allows me to go into the hearing much better prepared to address the issues raised by the moving party.  Often I have achieved a complete victory: overturning the ex-parte order; obtaining some attorney’s fees and costs; returning to the previous status quo.  Even when I haven’t achieved a totally successful result, it is my impression that the additional preparation time has led to less onerous temporary orders.  Finally, for those cases in which the other party’s allegations are essentially accurate, the additional preparation time allows me to investigate and counsel the client that resolution by consent is preferable to having his or her misdeeds aired in court.

As hard as it can be to counsel an anxious client to slow down, in defending ex-parte orders it’s often the best counsel.