FAMILY COURT CASE STUDY: THE ACTORS, THE VIOLATIONS, AND THE RESULTS

Nicolas Knight

The Daily Counter is one of only a few News Media Outlets that publishes Family Court Stories.  We will be running a series of articles pertaining to the factual issues concerning Family Courts in South Carolina.  As we pride ourselves on only using factual data this series will only use such for its basis.  Verified documents and evidence that the Family Courts and it’s Actors have used to profit from the destruction of lives.

THE ACTORS

FAMILY COURT JUDGES:  Family Court Judges are elected in South Carolina by the General Assembly.  These individuals are chosen from practicing attorneys within the State.  Their only qualifications are that they have been practicing Law for 8 years and be 32 years of age.  Additionaly, these candidates for the Family Court must first be screened and found qualified by the Judicial Merit Selection Commission prior to being presented for election by the General Assembly.

The Judicial Merit Selection Commission: This consists of Sen. Luke Rankin (Chairman)(Attorney), Sen. Ronnie Sabb (Attorney), Sen. Tom Young (Attorney), Ms. Hope Blackley-Logan, Mr. J.P. Strom (Attorney), Rep. Murrell Smith (Attorney), Rep. Todd Rutherford (Attorney), Rep. Chris Murphy (Attorney), Mr. Andrew Safran (Attorney), and Ms. Lucy McIver (Attorney).  9 Practicing Attorneys sit on this Commission along with 1 Non-Attorney.

These Practicing Attorney/Legislators all who have a private practice get to chose the Judges that they will have cases in front of at some time.

THE LAWYERS:  These individuals are “hired” to represent clients in the Courts.  Attorney’s must have received their Juris Doctor Degree from a recognized Law School by the ABA and passed the South Carolina Bar Exam with a score of 266 out of 400.  They must take an Oath of Office to uphold the Ethical Rules (these are found beginning with Rule 407) of the Jurisdiction they are in.

One must remember, that at some point these Attorney’s hope to be before the Judicial Merit Selection Commission in hopes of becoming a South Carolina Family Court Judge. And will be in front of Judges who may connect them with members of the Judicial Merit Selection Commission.

THE LITIGANTS:  The couples or individuals who “hired” the Attorneys to represent and aid them in the Family Court Industry.  These are the people who “pay” the attorneys to win their case for them, wether its to dissolve their marriage or win them custody of their children.  Also remember, the majority of these Litigants do not know anything about the laws or the Rules of Family Court, the “landscape” of the Family Court System.

THE CHILDREN:   The most innocent of all participants in the Family Courts.  The Children have “NO SAY” so of what occurs to them or how proceedings affect them for the future.  Children are also used by Attorneys as leverage against one side in Courts.

THE GUADIAN AD LITEMS:  These are either Attorneys or Lay Persons who are charged with being the voice for the children in Family Court cases.  They are paid by both sides of the case and are to perform a “balanced” investigation to recommend what is best for the children.  They are prohibited from making any custody recommendations.

The majority of GAL’s used by the Family Court system are Attorneys, which can offer a conflict of interest in most cases, as they may have a professional or private relationship with either Attorneys or Judges.

 

These are the players in most Family Court cases.  In extreme cases others such as Grandparents or other family members can be listed.  Witnesses wether Professional such as Psychologists or Non-professionals such as neighbors can also come into play, and usually do at some point.

THE VIOLATIONS

In this section we will look at the common violations of Law used in Family Courts.  These are violations of Constitutional Rights, Civil Rights, and Procedural Due Process.  We will also take into account the violations performed by some Attorneys and Judges as to Ethical and Statutory violations.  In order to do so we must show the process a case begins with after filings:

Temporary Hearings:  In temporary hearings Attorney’s are limited to 15 minutes usually to argue the facts of their filings.  These are the grounds under which they petitioned the Courts to give relief in either a divorce or custody issue.  By Law they are limited to filings of Affidavits and Oral arguments.  Judges can allow submission of evidence if needed.  These 15 minute hearings are also called “AMBUSH” hearings, as neither side was given any of the material to be used prior to the hearing.

Many Family Court attorneys will go beyond the allowed affidavits and submit subjective evidence that can not be verified in order to make the other side appear at fault.  Attorneys use the “preponderance of evidence” rule in these cases, which is the lowest standard of evidence and only used in Family Courts.  Many cases allege physical or mental abuse on either the spouse or children, or even both.

Affidavits are usually from the parties and occasionally from friends or relatives who submit hearsay affidavits in attempts to sway the Judge to their side. Hearsay affidavits are not admissible to any Courts as these individuals did not witness first hand what they are informing about.  But many Family Court Judges still take them into consideration.  

Within 15 minutes a Family Court Judge give a “Temporary Order” which sets the guidelines for the rest of the case.  Judges determine who shall have temporary primary custody and what if any visitation should occur with the children.  Judges also appoint a GAL, set Child Support Payments, who shall remain in the marital home, contact restrictions between the parties and place either one or both parties on restrictions of social media discussions pertaining to this case.

The “Temporary Orders” issued from these hearings are written up by the Attorney who prevails in the hearing, not by the Judge or Court.  These attorneys use the Judges verbal directions to write an order in favor of their clients by changing the wording of a verbal order. For example:  A Judge could order one party out of the home temporarily, while the lawyer would write “the Defendant is prohibited from stepping foot on the property”.  Even though the Judge did not state the defendant was not allowed on the property the lawyer added their restriction in the order.

Now these orders are to be approved by both attorneys and then the Judge.  In most cases opposing counsel skims the order and approves it and the Judge does the same.  This allows the writer of the order (the attorney) to begin painting the other side as a monster or at fault.  We have learned that in many cases Attorney’s do not contact their clients to view the draft copies of orders sent to them.  Part of the ethical duty of an Attorney is to keep their clients informed of all matters.

This brings us into the first violations of Family Court practices.  In the U.S. Constitution one of the many rights we hold close is the right to a jury of our peers.  This right does not exist in Family Courts, outside of the State of Texas.  Texas is the only State in the Union that currently allows Juries in Family Courts.  The right to trial by jury prevents any biases that may occur in the Courts wether by Judges or Attorney’s.  Which in nearly all Family Court cases is claimed either by Litigants or Attorneys.

The Second is the ambush method used in these Temporary Hearings.  A Defending Party (Litigant) is forced to defend themselves without knowing what evidence is being submitted to the Courts prior to the actual hearing.  Family Courts expect the Defending Party to be able to defend themselves on a moments notice at the hearing.  Lots of times without ever having full access to the alleged evidence being handed into the Courts.  This alleged evidence is usually in the manner of edited video clips, or audio clips for effect.  In some cases they are photographs submitted without any context.

In order to establish a proper defense to all allegations a Defending Party has the right to know what evidence is being used against him.  Now this does come under the Discovery Clause, but is used later in Final Hearings most of the time.

The Third is the use of Hearsay Affidavits, again these are statements made by individuals who do not have first hand knowledge of the actions.  Many Family Court Judges allow these in at Temporary Hearings.  In several cases these are written by family members of both parties, which are usually biased against the other party.  Hearsay Affidavits are not admissible in any court system within the United States.

The South Carolina Court Rules specifically state that temporary hearings are to be bases on oral arguments and affidavits.  Additional evidence may only be handed in if the presiding Judge requests it or deems it necessary.

Finally the Temporary Order itself, this is the Court Order that sets the guidelines for the rest of the case.  Judges give oral instructions to both parties and the Attorney who prevailed in the temporary hearing is charged with writing this order per the Judges instruction.  The writing Attorney is to draft a copy and send it to the opposing counsel for approval, prior to submitting it to the Judge for final signature.  In many cases the Attorney charged with writing the temporary order applies language to the document in favor of their client, not stated by the Judge in Oral instructions.  Some Attorneys will omit certain parts of the Oral instructions to improve their clients standing on paper.    This practice is common use in Family Courts.

This practice is called “Ghost Writing”, which in layman terms stands for someone other than the Judge wrote the order.  The U.S. Supreme Court and South Carolina Supreme Court has held that this practice is illegal, due to the fact it allows the writing attorney to add biased language in these orders against the other party.  In the past several years Judges have been held accountable for allowing this practice in their court rooms, yet it still maintained as a current practice.

In re Colony Square, 819 F.2d 272, 274 (11thCir. 1987), cert. den., 485 U.S. 977 (1988).  The U.S. Court of Appeals explained why such ghostwriting ws objectionable:

The dangers inherent in litigants ghostwriting opinions are readily apparent.  When an interested party is permitted to draft judicial order without response by or notice to the opposing side, the temptation to overreach and exaggerate is overwhelming.  The proposed order or opinion serves as an additional opportunity for a party to brief and argue its case and thus is unfair to the party not accorded an opportunity to respond.  The quality of judicial decision making suffers when a judge delegates the drafting of orders to a party; the writing process requires a judge to wrestle with the difficult issues before him and thereby leads to stronger, sounder judicial rulings.

Even with such case law coming from High Courts the practice of Attorney written Orders is still used.  Excuses are given such as backlogs for Family Courts are high, or the other party was given a draft copy prior and could have objected but chose not to.  The bias in such orders are clear to most individuals.  What is not realized is that this allows the portrayal of one party at fault later if the cases moves to the Appeals Courts or Supreme Courts in documentation, which is what is used in those Courts, this is called the “Record on Appeal”.

In the next piece in this series, we will continue to look at more violations and more procedural loopholes that are used in Family Courts.

 

 

 

 

 

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