On January 29, 2025, the South Carolina Supreme Court proposed an amendment to Rule 21, SCFCR, to the South Carolina General Assembly. If not rejected by the Assembly, it would go into effect in late April.
The rule addresses and fixes many flaws with the current temporary hearing system. It increases the notice requirement from five business days to twenty days. It requires a return to be filed ten days before the hearing. It allows the return to address relief the defending party seeks. It requires initial supporting affidavits be served five days before the hearing. It allows only reply affidavits to be served at the hearing. It clarifies that the procedures of Rule 65, SCRCP, apply to ex-parte applications.
All these changes address due process problems with the current temporary hearing system. I have noted these concern in previous blogs, most especially, Does procedural due process mandate testimony at family court temporary hearings in South Carolina? and Should there be automatic de novo review of temporary custody and support orders?
This new rule would fix the problem of defending parties not having sufficient time to prepare. It would fix the problem of defending parties showing up at temporary hearings with their own list of requests without providing the prosecuting party any notice or opportunity to defend.[i] It would fix the problem of parties having no notice or opportunity to address the other party‘s allegations. It should make the process of issuing ex-parte orders more uninform and less subject to judicial whim.[ii]
There are technical rules regarding the number of pages of affidavits and supporting exhibits that can be provided and an odd provision that allows an unlimited number of exhibits that can be served on an opposing party but not filed with the court—merely made available for the temporary hearing judge if requested.
The glaring flaw in this rule is how one defends a motion for temporary relief if retained shortly before the hearing date. If retained fewer than ten days before the hearing, one cannot meet the return requirement of the rule. What happens then? If retained fewer than five days before the hearing one cannot meet the affidavit deadline (although one could still prepare and file reply affidavits). What happens then? The rule doesn’t address either of these concerns.
Since I can typically draft a return the day I am retained, getting retained ten days before the temporary hearing shouldn’t be a big concern. But drafting and filing affidavits, especially witness affidavits, cannot be done immediately. If retained a week before the temporary hearing, how much responsibility would I (as an attorney) have to ensure adequate affidavits are timely filed? This rule, if it goes into effect, would make me very cautious about taking on representation with fewer than ten days to prepare.
[i] In theory family court judges should not be granting relief to parties who fail to file and serve a timely cross-motion. In practice family court judges routinely do this if the prosecuting party does not object and often do it even if that party objects.
[ii] Again, in theory, judges should have been already been following Rule 65, SCRCP, when issuing ex-parte orders. In practice, this rarely occurred.
It would also help if the day-of-hearing affidavits were limited in scope to (a) responding to specific allegations in the adverse party’s five-day affidavit, and (b) any occurrences that happened between the five-day affidavit and the hearing.
As for how to address the concerns of being retained less than ten days prior to a hearing, it might be worthwhile picking the brains of our colleagues in New Jersey. If memory serves, the timeline of this proposed rule change closely resembles the timeline in their motion practice.
As I read the proposed rule affidavits served at the hearing must be “in response to the opposing parties’ evidence” or “additional detail in support of a request for attorney’s fees and costs.”
If you get hired on the eve of the temp hearing, Rule 21(h) of the new rule to the rescue?
Perhaps you are move comfortable than I am that the court would continue the hearing to give the defending attorney more time to prepare.