South Carolina Lawyer
Vol. 13, No. 1, Pg. 24.
Obtaining Relief From Family Court Temporary Orders
24Obtaining Relief From Family Court Temporary OrdersBy Gregory S. FormanFew things cause family law practitioners more night sweats, indigestion and sheer abject terror than temporary hearings. These hearings can be held on five business days notice-fewer if the court finds an emergency situation exists. Rule 21(a), SCRFC. Unlike standard motions, supporting affidavits do not have to be provided prior to the hearing. Rule 21(c), SCRFC. While family court judges are required to make factual findings to support their orders from final hearings (Rule 26(a), SCRFC), this requirement does not apply to temporary hearings.
The only evidence generally received at temporary hearings are pleadings, affidavits and financial declarations. See Rule 21(b), SCRFC. Because they are not subject to cross-examination and do not have to be supplied prior to the temporary hearing, these affidavits and financial declarations are frequently rife with half-truths, exaggerations and outright fabrication. Based on this information, family court judges issue orders that determine temporary custody of a party's children and implement support requirements transferring a substantial portion of one party's income to another party. The custody, support and attorney's fees provisions of temporary orders are not stayed by appeal. Rule 225(b)(6 & 9), SCACR. Despite this, the family court shows little restraint in using civil contempt sanctions, including incarceration, to enforce temporary orders.
Given the rules that structure temporary hearings, it is not surprising that family court litigants often believe temporary orders are unjust or ask the impossible. Further, a hearing on the merits is often months or even years away. Yet it is possible to obtain relief from these orders prior to a trial on the merits by: 1) motions to modify; 2) subsequent motions for temporary relief; and 3) petitions for supersedeas. While attempts to obtain relief from temporary orders should be used sparingly, this capacity creates an important safety valve in protecting clients from unjust or impossible-tocomply-with temporary orders. This article will explore the three methods of obtaining relief from family court temporary orders and analyze when each method is...