South Carolina Lawyer
SC Lawyer, September 2008, #3.
Preparing Successful Affidavits in Family Court Custody Actions
South Carolina LawyerSeptember 2008Preparing Successful Affidavits in Family Court Custody ActionsBy Robert Rushing Jr.If you practice infrequently in family court, you may be unfamiliar with the role of affidavits in temporary hearings. In such hearings, sworn statements are provided to the court in lieu of testimony. The family court judge makes a temporary and non-prejudicial determination of all contested issues, which can include, among other things, child custody, child visitation and support.
This temporary order seldom has any effect upon the eventual ruling at a final hearing. It is ordinarily not even reviewed by the trial judge.
The rulings are appealable only under limited circumstances. In Smith v. Smith, 359 S.C. 393, 597 S.E.2d 188, the S.C. Supreme Court notes that, "an intermediate or interlocutory order is immediately appealable only if it involves the merits of the case or affects a statutory right."
The case cites Tatnall v. Gardner, 350 S.C. 135, 564 S.E.2d 377, in which the S.C. Court of Appeals ruled that a wife's request for attorney's fees is not immediately appealable because it does not involve the merits of the case nor does it affect any of the wife's substantial rights. The case sets forth the general rule that "this Court may not review an order that does not prevent a judgment from being rendered in the action, and from which the appellant can seek review . . . in any appeal from final judgment."
Despite this, the importance of the temporary hearing can hardly be overestimated. The client who loses custody at such a hearing is often emotionally devastated. He is seldom consoled by any assurance, from his lawyer or the judge, that this does not effect his "day in court."
Likewise, these rulings have significance through sheer inertia. The temporary hearing commonly occurs when emotions are highest and purse strings loosest. Frequently, one or both of the litigants tires of the litigation process and ends up settling for the status quo as set in the temporary hearing.
As such, the affidavits presented at the temporary hearing might well determine the extent of access of your client to her child, and consequentially, satisfaction with you. These are compelling reasons to prepare them with thought and care.
Their preparation presents unique challenges. This is primarily due to the fact that they are collaborative efforts with the client. The lawyer is faced with the need to edit what is often heartfelt and emotional content. In effect, you are a biographer. The relative success of the end result is inherently tied to your...