SC Lawyer, May 2004, #3. Beyond the Bar May 2004 The corpus evidentia in family court.

AuthorBy Warren Mo\xEFse

South Carolina Lawyer


SC Lawyer, May 2004, #3.

Beyond the Bar May 2004 The corpus evidentia in family court

South Carolina LawyerMay 2004Beyond the Bar May 2004 The corpus evidentia in family courtBy Warren MoïseYears ago, my brother Ben and I were in a rural county putting on an oyster roast. A local magistrate attended. Talk turned to the law, and the magistrate declared that he held family court in the yard of his garage. He sometimes divorced people on Friday afternoons. When Sunday came, they usually were remorseful, and so he remarried them. I was just a law student, but that sounded fishy. I expressed doubt to his honor whether he could legally divorce people. He admitted that no, he couldn't. However, he said, "You know that, and I know that, but they don't know that."

Many lawyers see procedure in family court as less strict than in other venues. Is there a separate corpus evidentia, or body of evidence, for these courts where some of our society's most important decisions are made? To answer this question, one must first look at the history of the courts themselves.

What goes up, must come down?

Women had severe limitations upon their legal rights under the common law. Although women's procedural rights were expanded, minors' procedural rights were largely erased as a result of the reform movement in the late 1800s and early 1900s. Juveniles were seen as basically "good," and when family courts were created, the hearings were designated to be "non-adversarial." Procedural rights were theoretically unnecessary if there were no prosecution.

The tide began to turn against the legality and wisdom of ignoring minors' procedural rights in In re Gault, 387 U.S. 1 (1967) and In re Winship, 397 U.S. 358 (1970). The courts refused to substitute reformers' good intentions for the time-tested benefits of basic procedures. On the other hand, courts have been unwilling to require that juvenile adjudications adhere to all procedural requirements and formalities of an adult's criminal trial. See United States v. Hill, 538 F.2d 1032 (4th Cir. 1976).

In South Carolina, hearings in family court must be conducted in a judicial atmosphere, Fam. Ct. R. 9(a), but the proceeding need not be done in a "formal" way when minors are involved.

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Children generally should be excluded from courtrooms in actions where parents are...

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