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I. Introduction A. Exam Tips 1. Start essay with: Family law governs.

SC has adopted Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA) for custody rules. 2. Summary of most commonly tested issues: a) Common Law Marriage: SC recognizes common law marriage, where 2 parties, both over 16, cohabitate and hold themselves out to the public as husband and wife, with intent to live as husband and no impediments (like bigamy or age). b) Marital Property: Court is authorized to effectuate equitable distribution of all property, real or personal, acquired by either spouse during the marriage from a source connected with marriage. c) Divorce: Uniform Divorce Recognition Act prevents a SC couple from going to another state to get a quickie divorce, thus circumventing this states divorce procedures. Divorce obtained in another jurisdiction is of no force in *SC if both parties were domiciled in th is state at time of other states proceedings. d) UCCJEA: Provides the order of a state with continuing exclusive jurisdiction is entitled to be enforced in every other state. No other state can modify the order unless the first state relinquishes jurisdiction. Jurisdiction is usually vested with the home state. B. Introduction to Marriage 1. Right to marry is a fundamental right but states may regulate state regulations must be the least restrictive means to serve a compelling state interest 2. SC still recognizes a cause of action for breach of contract to marry the actionable conduct is the act of breaking the promise and not conduct that leads up to the break-up a) Defenses are: (i) That one of the parties was married when promise made and the other party knew (ii) There was illegal consideration (sexual intercourse) (iii) misrepresented matters considered essential to the marriage (sterility, impotence, venereal disease) 3. Gifts in Consideration of Marriage a) Elements (i) Gift is subject to a condition subsequent that the donor and done will marry (ii) The gift would not have been made without the expectation of marriage b) Usually if the marriage does not take place, the donor will be able to compel the return of the ring or other gift c) SC is a no-fault state, so it does not mater whose fault it is that the marriage will not take place d) If not based on agreement to marry then the donee will keep it if it is delivered to them by a donor who has a present intent to make an unconditional gift and the donee accepts C. Marital Agreements 1. Prenuptial Agreements a) Made before and in contemplation of marriage b) If unambiguous, clear, and explicit, it must be construed as written (Hardee v. Hardee) but SC has not adopted the Uniform Premarital Agreement Act c) Requirements (i) In writing in keeping with SOF (ii) Made pursuant to full financial disclosure (iii) Voluntarily executed (iv) Each party represented by separate counsel d) Defenses: fraud, duress, mistake, misrepresentation, unconscionability e) Not binding as to child custody, child support, or spousal support where the enforcement would be unfair or unreasonable (like spouse would become a public charge) 2. Marital Agreements Incident to Divorce a) Married persons may make agreements relating to settlement, reconciliation, and separation, but are strictly scrutinized because the parties are not at arms length b) Agreement valid if (i) Voluntarily made (ii) In good faith (iii) Fair and equitable c) Reconciliation nullifies previous agreement unless it was court approved 3. Alimony and child support agreements a) Are not final and can be modified as equity requires b) Threshold is substantial change in circumstances c) Parties may expressly waive alimony for consideration d) Parties may not waive child support 4. Property Agreements a) Are binding and enforceable and cannot be modified by the court b) Must be voluntary and without undue influence c) Factors to determine voluntariness (i) Opportunity to seek counsel (ii) Place and time where agreement presented was enough for signor to reflect on terms (iii) Statements made at presentation of the agreement d) If parties intended an agreement to be a final settlement of any obligations about any kind of property, then it is a property agreement e) Can relinquish property right in return for periodic payments, but to destroy the right to alimony, agreement must expressly state that consideration is in lieu of alimony 5. Concurrent Jurisdiction with Probate Court a) Family and Probate Courts have concurrent jurisdiction to hear matters of paternity, common-law marriage, interpretation of marital agreements in connection with family, estate, trust, guardianship, and conservatorship actions II. Creation of Marriage Relationship A. Formal/Ceremonial Marriage 1. Legal Requirements 1

a) Marriage License (i) Both parties must appear before the probate judge or clerk of court (ii) Parties must be at least 16 if under 18 and living with parent or guardian, then a sworn affidavit giving permission from parent or guardian is required (iii) 24 hour waiting period (iv) Nothing in the statute says that a marriage contracted without a license is invalid and minor irregularities wont normally render the marriage invalid b) Solemnization (i) Both parties must be present ad express their consent to marry (no proxy marriages) (ii) Requires an officiant authorized by statute or an officer authorized to administer oaths B. Common Law Marriage 1. South Carolina, along with a minority of states today, allows a marriage to be entered into without a license and ceremony through the doctrine of common law marriage. 2. Requirements a) In South Carolina, the requirements for a common law marriage, which must be met while the parties are physically present in the state, are: (i) An agreement to be presently married, express or implied (ii) Cohabitation (1) Cohabitation means the parties must not only live together on an ongoing basis, but must also consummate the relationship. However, as with a ceremonial marriage, it does not mean that consistent sexual relations are required. (iii) Holing themselves out as a married couple (1) Represent to others as H and W and not just partners evidence can be if the community believes they are married or they represent themselves as husband and wife on legal forms (iv) At least 16 years old (v) No other impediments b) Burden of Proof (i) The burden of proving a common law marriage is on the party asserting it. (ii) This burden may be especially heavy when a party claims he/she was the common law spouse of a deceased person, so as to be able to share in the estate of the deceased. C. Limitations and Impediments 1. There are five types of impediments to a valid marriage: a) First Impediment: Age (i) Anyone over 18 is free to marry (ii) Between 16 and 18 years old (and living with parent, relative, guardian): must get affidavit granting permission (iii) Younger than 16 years old: may not marry unless extreme circumstances (like if the girl is pregnant and certain requirements are met) b) Second impediment: Same-Sex Partners may not marry (void) c) Third impediment: Consanguinity (voidable) (i) South Carolina forbids marriages between people more closely related than first cousins, by blood or by affinity (marriage) (1) A man may not marry his mother, grandmother, daughter, granddaughter, stepmother, sister, grandfathers wife, sons wife, grandsons wife, wifes mother, wifes grandmother, wifes daughter, wifes granddaughter, his brothers daughter, his sisters daughter, his fathers sister, or his mothers sister (2) A woman may not marry her father, grandfather, son, grandson, stepfather, brother, grandmothers husband, daughter;s husband, granddaughters husband, husbands father, husbands grandfather, husbands son, husbands grandson, brothers son, sisters son, fathers brother, mothers brother (ii) Kin of half blood are counted as whole blood. (iii) Marriage between first cousins is permitted (bot hopefully frowned upon) d) Fourth impediment: Mental or Physical Incapacity (voidable) (i) Mental Incapacity: A marriage is invalid when: (ii) Physical Incapacity (impotence): Generally, impotence must be permanent and irreversible to be a cause for annulment or divorce. e) Fifth impediment: Prior Marriage Still in Force (Bigamy) (void) (i) However, the first marriage is seen as terminated if either party has been absent for 5 years and not known to the other to be living. In that case, the other spouse may remarry without first obtaining a divorce. (ii) Where a party has entered into more than one marriage, there is a strong presumption that the partys latest marriage is the valid one, and any earlier marriage was dissolved. 2. Other limitations a) Capacity and Consent a marriage is void or voidable where there is not consent because of fraud, duress, impermissible age, etc. and policy dictates the relationship is improper b) 2008 statute says that where an otherwise lawful marriage is voided by reason of fraud, the party committing the fraud may still have to pay spousal support if they would have in divorce proceedings D. Validity of Out of State Marriages 1. General Rule: a marriage is valid according to the rules of the state where it was contracted and will be recognized in every other state unless it is against another states public policy a) Examples of marriages that are invalid in South Carolina as violative of its public policy: (i) Polygamy (ii) Incest (iii) Same Sex 2. Evasion of State Law a) South Carolina, like most states, does not recognize marriages entered into by their residents who leave South Carolina to contract a marriage that would be invalid if contracted in South Carolina in an attempt to evade South Carolina public policy against such a marriage. E. Rights of Unmarried Cohabitants 1. In many states, courts have held that recovery of a share in property accumulated during cohabitation may be obtained on the theory of express or implied contract or on equitable theories. 2

a) The South Carolina Court of Appeals has held as a general matter that in the absence of an express agreement, an agreement may be implied from the conduct of the cohabiting parties. III. Legal Rights Within Marriage A. Confidentiality 1. There is a statutory privilege against disclosure of confidential communications made by one spouse to another during marriage, except in cases of a) Child abuse or neglect b) Death of a child c) Criminal sexual conduct with a minor d) Commission or attempt of a led act on a minor 2. Privilege is held by the testifying spouse not communicating spouse B. Intestate Succession and Wills 1. Intestacy: Surviving spouse is entitled to: a) Where there are no children the whole estate b) Where there are children half of the estate c) Survive means living 120 hours after others death 2. Elective Share: Where there is a will, spouse can elect to take 1/3 of the estate after expenses come out (waivable) 3. Omitted Spouse: if testator is married after making his will and dies without making a new one, she will get the share she would have received if he had died intestate unless a) The will shows the omission is intentional b) Spouse was provided for by non-testamentary bequest that was intended to replace the testamentary one C. Spousal Property Rights During Marriage 1. Each spouse controls his or her own real and personal property both before and during the marriage 2. Co-Ownership a) South Carolina does not recognize the estate of tenancy by the entirety; marriage does not automatically create the ability. (i) Instead, spouses customarily hold property as joint tenants with right to survivorship b) If a deed contains the names of the grantees followed by the words as joint tenants with rights of survivorship, and not as tenants in common, the creation of a joint tenancy with rights of survivorship is conclusively deemed to have been created. 3. Transfer Between Spouses a) In South Carolina, if a joint tenancy is intended, a conveyance by a spouse to either both or to the other spouse, in order to create a joint tenancy, must specifically say that is what is intended (i) A conveyance from one spouse to the other of real property or any interest therein owned by the grantor alone vests such property or interest in the grantee alone. b) When one spouse transfers money or other property to the other without consideration, there is a rebuttable presumption that a gift was intended. c) If a spouse pays a third-party consideration for property that is conveyed to the spouse, a resulting trust does not arise because the transfer is considered a gift unless there is clear proof otherwise 4. Transfer to Third Parties a) A married person may transfer real or personal property that he owns separately (i.e., obtained by inheritance, gift, or purchase with nonmarital assets). b) Property owned as joint tenants can be transfere c) Once a divorce proceeding is commenced, courts typically have the power to issue interim orders to prevent transfers or dissipation of assets by a spouse before entry of the final decree. 5. Effective of Divorce a) If H and W are the only joint tenants, right of survivorship is severed and parties hold as tenants in common D. Support Obligations 1. Support and Separate Maintenance a) Each spouse has a duty to support the other during marriage b) Timing (i) A spouse may apply at any time for support payments without seeking dissolution of the marriage (1) This is especially important in no-fault divorce situations c) Extent is based on need v. ability to pay d) Modifiable upon showing of substantial change in circumstances e) South Carolina provides civil remedies and criminal penalties for nonsupport and desertion of ones spouse or children (63-17-410) 2. Liabilities a) South Carolina law imposes secondary liability upon a financially superior spouse when the other spouse is forced to incur debt for necessaries due to a shortfall in that spouses funds. (i) Necessaries include: (1) food, clothing, shelter, medical treatment (ii) SC generally recognizes 3 situations where this liability arises: (1) Where the debtor-spouse has express or apparent authority to pledge the others credit for household expenses (2) where non-needy spouse neglects, fails, or refuses to furnish the needy spouse with necessaries that are then supplied to that spouse by a third person with the expectation of payment; (3) where one spouse has incurred medical expenses beyond their ability to pay E. Torts and Crimes 1. Torts: a) Interspousal and parental immunity have both been abolished in SC. b) Standard of care is whether the acts were of a reasonable parent or spouse. c) SC has abolished common law actions for criminal conversation and alienation of affection d) Vicarious tort liability (i) The Family Purpose Doctrine is still in effect for South Carolina. It serves to impose liability on any financially solvent family member for traffic accidents involving operation of the family vehicle by any member of the family. (ii) Under modern law, though, you are not liable for torts of your spouse 3

2. Crimes: a) Against Person: There is no family immunity in criminal prosecutions of persons or spouses for crimes against family members. (i) Husband can be prosecuted for sexual battery against wife. (1) SC 16-3-615: for spouse to be guilty, requires physical manifestation of force or violence needed to overcome the victim (2) Rape of wife is exempted from the rape shield laws b) Against Property: No family immunity in criminal prosecutions of persons and spouses for crimes against property of family members. c) Interspousal wiretapping is illegal F. Name Change 1. Wife need not take her husbands name if she does she can revert back without legal action 2. Wife may take back maiden name or name of previous husband upon grant of divorce or separate maintenance 3. Anyone else may petition for name change but must provide a) Fingerprint and criminal background check b) Statement about whether they are on DSS child abuse and neglect registry c) Affidavit that they are not under order to pay alimony or child support d) SLED screening saying whether they are on the sex offender registry 4. You can take another name by usage or habit without legal action G. Protection from Domestic Violence 1. In South Carolina, it is still a defense to a charge of criminal sexual conduct (sexual battery) that the victim was the legal spouse of the perpetrator unless: a) the spouses were living apart at the time; b) the perpetrators conduct constituted criminal sexual conduct in the first or second degree; and c) the victim reported the offense within 30 days. 2. The South Carolina Code provides for orders of protection for people who have been victims of domestic or family violence, which may be sought against the following: a) a family or household member who commits an act of domestic or family violence; or b) any person who has committed stalking or a sex offense against the petitioner. 3. Petition for Order of Protection a) Can be brought by (i) Any household member in need of protection (ii) Can be brought by any household member on behalf of minor household members b) Must include (i) Allegations of the existence of abuse to household member (ii) Statements of specific time, place, details of abuse and other facts and circumstances upon which relief is sought (iii) Must be verified (iv) Must inform respondent of the right to retain counsel 4. Hearing a) Emergency hearing may be held for good cause within 24 hours after service of petition b) If court denies emergency hearing or one is not requested, a hearing, if requested,, must be granted within 15 days 5. Scope a) The order may enjoin spouse from (i) Abusing, threatening to abuse, or molesting the petitioner or person on behalf of whom the petition was filed, (ii) Communicating or attempting to communicate with the petitioner (iii) Entering or attempting to enter the petitioners place of residence, work, education, or other locations as ordered b) As part of the order, the court can also order (i) Temporary custody and visitation rights to minors in the home over whom the parties have custody (ii) Respondent to pay temporary support unless he has no duty to support them (iii) Grant temporary possession of a residence to petitioner (iv) Prohibit the disposal of real or personal property mutually owned (v) Provide for temporary possession of personal property and order law enforcement assistance in removal (vi) Award attorneys fees and costs to either party (vii) Award any other relief authorized in the statute while regarding any prior orders of the family court 6. Duration a) Time must be fixed for not less than 6 months and not more than 1 year (i) Can be terminated early by reconciliation and order of dismissal (ii) May be extended or terminated upon motion by either party showing good cause with notice to the other party IV. Parental Rights and Obligations A. Custody and Control of Children 1. If both parents are living, competent, and have not been found to be unfit, they are entitled to their minors custody, and to direct his or her education and medical care. 2. Both parents are equally charged with a) The welfare and education of their minor children and b) The care and management of the estates of their minor children c) There is no presumption in favor of the mother as the more appropriate custodian. 3. For a nonparent to seek custody or other right to a child who has living parent(s) there must be a finding of unfitness B. Access to Information 1. Unless a court says otherwise, each parent, whether custodial or non-custodial, has the same right: a) To obtain (i) All educational records (ii) Medical records of their minor children b) To participate in their childrens school activities unless prohibited by the court C. Name Change 4

1. For a child, the child must be a party to the action unless waived by the court, the court must appoint a GAL and then the case is decided based on the best interests of the child 2. Factors a) Length of time child used present surname b) Effect of the change on the preservation and development of the childs relationship to eac h parent c) Identification of child as part of family unit d) Wishes of parents e) Stated reason for change f) Motive of the parents and possibility that the use of a different name could cause insecurity or lack of identity g) Difficulty, harassment, or embarrassment to the child if he bears a name different from the custodial parent h) Preference of the child if he is of the age and maturity to express a meaningful preference i) Degree of community respect for present and proposed names D. Support Rights and Obligations 1. Parental Obligation to Support Child a) A parent has an absolute legal duty to support his or her minor children. b) The father and mother are both equally responsible for the support of their minor child. c) In South Carolina, the duty of support ceases when the child becomes 18 years old unless any of the following conditions exist: (i) Child is still in high school (support continues until either graduation of the end of the first year where they turn 19 whichever comes first (ii) Child is emancipated d) Emancipation (i) Triggers (1) Child is emancipated upon turning 18 unless enrolled in HS and making satisfactory progress toward completion (a) Must terminate by 19 (2) Child marries (3) Child becomes self-supporting (4) Graduation from high school if over 19 but less than 19 (ii) Exceptions (1) Pre-existing contract or order for support (2) Physical or mental disability (3) Other exceptional circumstances (iii) South Carolina is silent as to support for college once a child turns 18 years old. However, South Carolina courts can order divorced parents to pay for a college education as part of the courts general authority to make child support awards. 2. Liability for Childrens Acts a) Parents are liable for damages caused by their children in certain circumstances (i) Acts of the minor that cause damage to a lodging establishment (ii) Property damage under $5000 (iii) Damage caused by negligent or willful misconduct of a minor while driving where the minor is not insured and the parent signed the application for the permit or license (iv) Family purpose doctrine 3. Abortion a) When performed and by whom (i) First and second trimester allowed (ii) Third trimmest is only if the attending physician and an additional consulting physician certify that it is medically necessary to preserve the womans life or health (iii) Must be performed by a licensed physician b) Where Performed (i) First trimester: no restriction (clinic ok) (ii) Second trimester: hospital or clinic certified by DHEC (iii) Third trimester: hospital or clinic certified by DHEC c) Consent (i) Adults (1) Woman who is competent (a) During 1st or 2nd trimester only womans written and informed consent (b) 3rd trimester if woman is married and living with her husband, his consent is required (2) Incompetent Woman (a) If married, spouse or legal guardian must consent (b) If unmarried, one parent or legal guardian must consent (ii) Minors (1) Unemancipated Minor: Physician must have obtained the informed, written consent, signed and witnessed, of the pregnant minor, and (a) One parent of the minor, or (b) A legal guardian of the minor, or (c) A grandparent of the minor, (d) Or anyone standing in loco parentis to the minor for at least 60n days (2) Emancipated Minor (a) The minor is emancipated and the attending physician or his agent has received informed consent, written and signed (3) Parental Bypass (a) Attending physician or his agent has gotten informed written and signed consent and has received the order of the court, obtained by the minor (iii) Waiver of Consent: allowed if physician determines that (1) A medical emergency exists involving the life of or grave physical injury to the woman (2) Pregnancy is the result of incest 5

(3) Womans consent is always required if she is capable of giving it V. Dissolution of Marriage A. Void and Voidable Marriages 1. Void versus Voidable Marriage a) Void marriage (i) Marriage is not good for any legal purpose (ii) May be attacked in any proceeding, in any court, between any parties (iii) May be attacked even after the parties to it are dead b) Voidable Marriages (i) Marriage where there is an imperfection but it is valid unless and until attacked (ii) If voided, it is treated as void from the beginning (iii) Can not be attacked unless both parties are living (iv) Can only be attacked by a party to the marriage 2. Dissolution of Voidable Marriage - Annulment a) The grounds for annulment must have existed at the time the marriage was entered in to b) Grounds for annulment (i) Failure to consummate by cohabiting (ii) Duress (1) This must be clearly demonstrated throughout the transaction to such an extent that the party could not and did not act as a free agent; the violence or threats must have been of such a nature as to inspire great fear of bodily harm (2) Can exist even if ceremony performed by officiant (iii) Fraud (1) Must have been something essential to the marriage relation (2) Examples that are sufficient (a) Fraudulent representation of sanity or insanity (b) Known impotency (c) Known sterility (d) Inclination to have children in violation of an agreement (3) Examples held insufficient are false representations about ones: (a) Character (b) Social standing (c) Fortune (iv) Affinity and Consanguinity c) Legal Effects of Annulment (i) Alimony and Property Division (1) Courts will not award either upon annulment (a) Since the marriage never legally existed, technically no marital property could have been accumulated while the parties were together. (2) In South Carolina, courts may apply equitable distribution principles to divide the parties accumulated property. (3) The court does not have the power to order spousal support, but it is authorized to order child support. d) Legitimacy of Children (i) In South Carolina, children born of a bigamous marriage entered into in good faith are considered legitimate to both parents. (ii) Upon annulment, the court has the same power to make orders relating to the care, custody, child support, and maintenance of minor children of the parties as in the case of a divorce. e) Generally (i) Court order needed to dissolve (ii) Subsequent cohabitation/consummation will ratify and the marriage cant be invalidated f) Defenses to Annulment (i) Condonation: continuing cohabitation after discovering defect (ii) Laches (iii) Ratification 3. Void Marriages No Need for Annulment a) Types (i) Minors under the age of 16 (ii) Lack of capacity (iii) Polygamy/Bigamy (iv) Same Sex Marriages b) Generally (i) No legal decree needed to dissolve (ii) Subsequent cohabitation will not ratify (iii) Removal of impediment might like non-age if the person becomes of age, the marriage is then voidable A. Divorce CHECKLIST When you are faced with a divorce question, you need to consider it in two parts: 1. Procedural and 2. Substantive Then, set up the organization appropriately. Procedural Substantive Subject Matter Jurisdiction Grounds for fault divorce: Domicile Adultery Residency Requirements Desertion Personal Jurisidiction Physical Cruelty Divorce Waiting Period Habitual Drunkenness or Drug Abuse Venue Grounds for no-fault divorce: 6

Living Separate and apart for 1 year 4. Jurisdiction a) Subject Matter Jurisdiction (i) The Family Courts have jurisdiction over divorce actions. (ii) A suit for divorce is an action in rem. The status of the marriage is the res over which the court has jurisdiction. b) Domicile and Residency Requirements (i) Domicile (1) United States Constitution requires domicile of at least one of the parties (2) In rem jurisdiction is established over the marital status by virtue of the domicile of one of the parties within the state at the time the action was filed, regardless of whether the parties lived in the state as a couple. (3) Domicile generally requires both the physical presence in the state plus living there with the intent to make the state a permanent home. (ii) Residence (1) South Carolina also provides that: (a) One of the parties must have resided in the state (or have been stationed here) for one year before an action can be filed, OR (b) Both parties resided here for at least 3 months (2) The residence requirement is jurisdictional and cannot be waived. c) Personal Jurisdiction (i) Although domicile establishes in rem jurisdiction for purposes of granting the divorce, personal jurisdiction over the defendant is necessary for the court to enter or enforce any decrees in personam, including support obligations or division of out-of-state property (ii) Personal jurisdiction over a nonresident defendant in a South Carolina divorce action must be obtained either by: (1) Personal service in the state (2) Pursuant to the minimum contacts doctrine of due process (3) Agreement/Waiver (iii) Use of the long-arm statute may be sufficient to allow a court to exercise personal jurisdiction over a nonresident defendant spouse. (1) Unlike many states, South Carolinas long-arm statute does not contain a provision allowing the exercise of personal jurisdiction over a person just because they maintained a marital relationship within the state but that can serve as enough minimum contacts d) Venue (i) Venue is proper in the county where: (1) resides (2) resides if is a non-resident or, after due diligence, cannot be found (3) Where the parties last resided together unless is a non-resident then it is the county where resides e) Service of Process (i) In-State Defendant (1) Copy of summons and complaint delivered to them (ii) Out-of-State Defendant (1) Mail (iii) Constructive Notice (1) If defendant is a non-resident or cannot be found, service may be made by publication 5. Divorce Waiting Period a) General rule: Divorce complaint must be on file for 2 months before hearing and 3 months before a decree can be entered b) Exceptions: (i) For one year separation or desertion, the hearing or decree can come any time after the pleadings are filed or defaults (ii) For at fault divorces based on cruelty, drunkenness or adultery, a speedy divorce can be obtained in as early as 3 months 6. Miscellaneous a) Reconciliation: The judge must attempt to reconcile the parties before granting divorce b) Corroboration: All grounds for divorce must be corroborated and ca nt rely solely on parties testimony unless possibility of collusion is not a consideration c) No Legal Separation: No such thing in SC, but a court can award separate support and maintenance d) Fault: fault is a factor in dividing property and awarding alimony 7. Grounds for Divorce (in SC there are 5) a) Adultery (i) Elements: Sexual relations between 2 parties where one is married (ii) Impact: May affect equitable distribution and alimony usually bar to alimony (iii) Proof: May be circumstantial (iv) Evidence (1) Must prove inclination and opportunity (2) State of mind may be inferred from circumstance (v) Homosexual activity is adultery b) Desertion for a Period of One Year (aka Constructive Desertion) (i) Elements (1) Cessation from cohabitation for one year (2) Intent not to resume cohabitation by absent party (3) Absence of consent (4) Absence of justification (ii) Impact: May affect alimony and equitable distribution c) Physical Cruelty (i) Elements (1) Actual personal violence or course of treatment endangering life or health, and (2) Renders cohabitation unsafe (ii) Conspiracy to murder a spouse is not enough unless an attempt is made 7

(iii) A single assault may be sufficient for this ground if it is life-threatening or raises an apprehension of serious bodily harm in the future like shooting a spouse is enough, slapping is not (iv) Mental cruelty is not a ground for divorce in South Carolina. d) Habitual Drunkenness and Drug Abuse (i) Elements (1) This must be a fixed habit of frequently getting intoxicated (2) Does not necessarily imply continual intoxication (3) Use or abuse of substances causes the breakdown of normal marital relations (4) Intoxication must exist at or near the time of the lawsuit (ii) Impact: May affect equitable distribution (iii) Doesnt require one be an alcoholic e) No-Fault (Living Separate and Apart without Cohabitation for One Year) (i) Elements (1) Parties live in separate domiciles (2) Separation is continuous (3) Separation is intentional (4) Period must be at least one year immediately prior to the filing of the action (ii) Impact (1) No fault grounds may impact equitable distribution. (iii) Insufficient Evidence (1) Must actually have separate residences and addresses not separate rooms in the same house or even separate buildings on the same property (2) The separation must be continuous and uninterrupted even one night together may reset the one-year period (3) Involuntary separation, like where a spouse is serving in the military, is not grounds but a spouse can separate for reasons apart from the military service B. Defenses 1. Collusion a) A secret agreement between two or more parties for a fraudulent, illegal, or deceitful purpose b) Elements (i) Parties to any divorce proceeding colluded OR (ii) The act complained of was done with the knowledge or assent of the plaintiff AND was done for the purpose of obtaining a divorce c) Court shall not grant a divorce where collusion is found 2. Condonation a) Forgiveness (express or implied) by one spouse for the others breach of a marital duty b) Elements (i) Forgiveness of antecedent marital offense, express or implied (ii) Mutual intent to renew full marital relationship, usually with cohabitation (iii) Full knowledge of the marital offense c) May be presumed from cohabitation and lapse of time where there was knowledge of the offense d) Presence or lack of sexual access is a pertinent factor in determining whether there has been condonation e) Condonation can be revoked by a second similar offense that leads the other spouse to believe the behavior has not stopped 3. Connivance a) Where the complainant consents or even seeks for the other to commit the offense b) Elements (i) Consent (express or implied) (ii) To the misconduct alleged as ground for divorce c) Example: One spouse actively trying to get the other to commit adultery so that they can seek a divorce 4. Insanity a) No-Fault Separation (i) Parties must be sufficiently competent to be conscious of the fact that the act of separation has occurred b) Adultery (i) Adultery requires the knowledge of the adulterers wrongfulness if adulterer can show they couldnt, insanity is a defense 5. Provocation a) Something that incites the offense b) Elements (i) Spouse would not have acted a certain way but for the misconduct of the complaining spouse, and (ii) Retaliatory cruelty is not out of proportion to the provoking conduct 6. Reconcilliation a) Resumption of the former marriage relationship b) Elements (i) Mutual intent (ii) Resume married life, entirely or reestablish the marital relationship on a permanent basis (iii) Mutual agreement to reconcile along with acts indicative of that intent (iv) Parties mean to live together as husband and wife and take up their respective roles c) Insufficient Evidence (i) Reconciliation is more than just cohabitation or the observance of civility (ii) Casual or sporadic cohabitation (iii) Isolated acts of intercourse (iv) Forbearance of a spouse by enduring cruelty d) Once reconciled, the prior fault may not be revived 7. Recrimination 8

a) Where accused party makes a similar accusation against the plaintiff is a defense if the acts of recrimination charged would be grounds for divorce themselves b) Elements: Other party committed an offense which constitutes grounds for divorce under SC law 8. Cant be used as a defense in a no-fault divorce 9. Recrimination is not a defense to the statutory bar for alimony C. Other Procedural Considerations 1. Temporary Injunctions a) Upon the filing of a complaint for divorce, the plaintiff may also request a temporary injunction or restraining order against the other party. b) Property cannot be dissipated during the pendency of this action. 2. Effect of Final Decree a) A final decree has the effect of revoking any disposition of property made by will to the former spouse and property passes as though the former spouse had predeceased the testator spouse. D. Uniform Divorce Recognition Act 1. A divorce obtained in another jurisdiction is of no force or effect in SC if both parties were domiciled in SC at the time the other proceeding commenced 2. Prima Facie evidence that a person was domiciled in SC: a) Physical Presence: if a person was living in SC within 12 months prior to commencing the out-of-state proceeding and resumed residence in SC within 18 months of leaving the other state OR b) Ownership of SC residence: if a party left SC to get a divorce and then returned, he will be considered a domicile if at all times during absence, he maintained a place of residence in SC VI. The Divorce Decree: Division of Property and Alimony CHECKLIST Step One: Identify each piece of property as either marital or non-marital Step Two: Divide up the marital property (equitable apportionment Step 3: Organize into IRAC PROPERTY DIVISION Issue: Property Identification Rules Rule 1: Define Marital Property Rule 2: Define Non-Marital Proeprty Rule 3: Define Transmutation 3a. Application and Conculsion for 1st Property Application: Describe 1st Property and apply rule to the facts Conclusion: Therefore, 1st property is marital property/non-marital property and is/is not subject to equitable apportionment 3b. Application and Conclusion for 2nd Property Application: Describe 2nd Property and apply rule to the facts Conclusion: Therefore, 2nd property is marital property/non-marital property and is/is not subject to equitable apportionment 3c. Application and Conclusion for 3rd Property Application: Describe 3rd Property and apply rule to the facts Conclusion: Therefore, 3rd property is marital property/non-marital property and is/is not subject to equitable apportionment EQUITABLE APPORTIONMENT Issue: Equitable Apportionment of Property Rules: Equitable apportionment is not equal distribution Under equitable apportionment, the court will look to several factors, some of which are (list as many as you can) Application: Discuss applicable factors only 4. Conclusion A. General principles: 1. Alimony is the support obligation, not debt, of one spouse to another. Alimony is not a punitive device, but simply the conti nuation of one partys duty to support another that arises from marriage. a) Separate Support and Maintenance refers to support payments made from one spouse to the other pre-divorce but the two terms are often used interchangeably 2. Alimony is available to either party of the marriage. 3. There is no separate action for legal separation in SC, but a spouse may bring an action for separate support and maintenance. 4. Temporary alimony can be awarded to give a spouse sufficient for support and to enable prosecution or defense of divorce action: done through motion for temporary relief. a) Repayment of temporary alimony may be required if order is successfully appealed or it is later shown that the spouse is not entitled to support. 5. Failure to obtain support in a separate maintenance action may act as a bar to receipt of alimony in a divorce action: the issue cannot be relitigated. 6. Alimony agreements are valid, but must be approved by the trial judge. a) Parties can agree to make the agreement non-modifiable and thus deprive the court of jurisdiction to modify the agreement. B. Effect of fault: 1. Alimony may be considered when determining alimony or separate support and maintenance. To be considered, the fault: a) Must affect economic circumstances of the parties, or b) Contributed to the break up and c) Happen before the earlier of one of two events (i) Formal singing of property/martial agreement OR (ii) Entry of a permanent separate maintain and support or permanent order of property settlement. 2. Adultery before earlier of two triggers bars adulterous spouse from receiving alimony. 3. This timing rule is taken very seriously. C. Method of payment: 1. Payment can be made directly to the supported spouse or through the family court. 9

2. The family court in its determination may require the supporting spouse to obtain life insurance to secure the support obligation. 3. Interest is due from the date each payment is made. D. Factors to Consider in awarding alimony/separate maintenance: 1. The court must consider all relevant economic factors, including, but not limited to: a) Duration of marriage/ ages of the parties at the time of the marriage and at the time of the divorce b) Physical and emotional condition; c) Educational background and need for additional training d) Employment history and earning potential e) Standard of living established during marriage (not considered if artificially low) f) Current and reasonably anticipated earnings g) Current and reasonably anticipated expenses and needs h) Contribution of each party to the marriage, including, but not limited to homemaking, child care, education, and career building of the other party; i) Support obligation from a prior marriage j) Tax consequences k) All sources of Income available to either party l) Financial resources of each party (including non-marital assets) and marital assets and liabilities distributed to each m) Fault of either or both parties, whether or not used as basis for divorce or separate maintenance order if it meets the trigger events; n) Custody of children (especially when it is appropriate for custodian to not work). o) Any factors that will promote Equity; E. Types of Alimony 1. Basic Types Periodic Alimony Lump Sum Alimony Rehabilitation Reimbursement Overview Preferred form of alimony Defined as a total sum Finite sum to be paid in one Definite sum to be paid in one paid in one installment or installment or periodically must installment or periodically Based on 3 factors over a period of time show special circumstances to award requires showing of special Duration of marriage Must show special circumstances Overall financial situation of circumstances to award, Factors: the parties such as necessity or Time necessary for SP to get Awarded when the court finds it Whether either spouse was agreement of the parties training or skills necessary/desirable to reimburse more at fault Likelihood that retraining will be SP from future earnings of PS for successfully completed event that occurred during the Likelihood of success in the job marriage market Termination Remarriage of SS Death of SS Remarriage of SS Remarriage of SS Death of SS Death of SS Death of SS Death of PS Death of PS Death of PS Continued cohabitation by Occurrence of specified event Continued cohabitation of SS SS Continued cohabitation of SS Can termination Yes termination upon Yes termination upon Yes termination upon death of SS Yes termination upon death of rules be changed by death of SS is required under death of SS is required is required under federal law SS is required under federal law agreement? federal law under federal law Statutory rule Modifiable due to change in Not modifiable because Modifiable due to unforeseen events Not modifiable due to change in governing circumstances amount is already owed which would make it difficult for SS, circumstances because it is a fixed modification in good faith, to become selfobligation sustaining or PS is unable to pay 2. Judicial Review of Agreement: The parties can agree to any terms they wish as long as the court deems the contract to have been entered fairly, voluntarily, and reasonably. With the courts approval, the terms become a part of the decree and are binding on the parties and the court. 3. Other Types of Alimony: a) Retroactive Alimony: Family court has jurisdiction and discretion to order retroactive alimony. b) Separate Support and Maintenance: Designed to provide support where the couple is still married but living apart, regardless of whether a divorce is or will be sought. (i) Paid periodically. (ii) Terminates upon death of either spouse. (iii) Modifiable upon changed circumstances. c) Other: Family court has discretion to award other forms of alimony as it considers just. Awards are not damages are not subject to tort causation principles. F. Annulment: 1. Whether alimony should be reinstated after the annulment of the SSs subsequent remarriage is determined on a case by case basis, considering: a) Length of subsequent marriage, b) Support from annulled marriage, c) Prejudice to Payor spouse, d) Proper annulment of subsequent marriage, e) Any change of circumstances after annulment. 2. There is no right to retroactive alimony after annulment. G. Alimonys relationship with equitable division: Reversal and remand on an equitable division issue requires remand of the ali mony issue since they are based on each other. Equitable division and alimony rise and fall together. VII. Property Division A. Generally: 1. Court is authorized to effectuate equitable distribution of all property, real or personal, acquired by either spouse during the marriage from a source connected with marriage. 10

2. Four-Step Distribution Process: The process of equitable distribution is a four-step process: a) Determine what property is to be divided b) Determine worth of marital property c) Determine what portion of property each spouse is entitled to (court will usually assign a percentage to each spouse) d) Determine how property should actually be divided B. Determining the marital property and its worth 1. Presumption: Assets acquired or liabilities incurred by either spouse during the marriage are presumed to be marital assets the presumption is rebutted by showing the property is non-marital 2. Marital/Nonmarital Assets and Liabilities: a) Martial Property Defined: Marital property is all real and personal property (i) Acquired by parties during the marriage, (ii) Owned as of the date of filing or commencement of marital litigation, and (iii) Regardless of how legal title is held (whether jointly or individually) b) Marital assets/liabilities include: (i) Those acquired or incurred by either or both spouses, (ii) Enhancement of or appreciation in value of nonmarital assets as a result of efforts by either spouse during marriage or by contribution from marital assets (iii) Interspousal gifts during the marriage (iv) All vested and nonvested benefits/funds accrued during the marriage in retirement, insurance plans, annuity, etc. c) Nonmarital Assets and Liabilities Defined: Statute presumes all property and debts incurred during the marriage are marital except: (i) Those acquired/incurred by either spouse prior to the marriage, along with assets/liabilities gained in exchange for that pre-marital property, (ii) Assets acquired by either spouse by noninterspousal gift, bequest, devise, or descent (and swapped for those assets) (iii) Income derived from nonmarital assets during marriage (iv) Assets and liabilities excluded from a valid written agreement of the parties (and swapped for those assets) (v) Property acquired by either party after happening of the earlier of three triggers: (1) Pendente lite order (2) Formal signing of settlement agreement, or (3) Permanent order of marital settlement d) Nonmarital assets/liabilities include: (i) Engagement ring before marriage (ii) Property made separate property in a separate maintenance action 3. Special Types of Property a) Retirement benefits: Considered martial assets subject to equitable distribution. Includes all vested and unvested benefits acquired during the marriage, whether through retirements, pension, profit-sharing, annuity, insurance plans, military pensions, etc. (i) Social Security Benefits are not subject to equitable distribution b) Professional degrees: Professional degrees are not subject to equitable distribution. Professional practices, however, may be marital property subject to equitable distribution. c) Damage Awards: In SC, we use mechanistic approach, which assumes that such awards are marital property and gives the court discretion to divide settlement proceeds from a chose in action that arises during the marriage but that the parties arent aware of until the divorce is marital property if the injuries were suffered or property lost during the marriage (Mears v. Mears) d) Commissions from business generated during the marriage that havent been paid yet are marital property e) A business created during the marriage is valued at FMV or the value of the inventory if it was operated as a hobby 4. Transmutation a) Property that is the separate property of a spouse may be transmuted into marital property b) Scenarios (i) Property so commingled that it becomes untraceable (ii) Property used by parties in support of marriage (iii) Property jointly titled (iv) Property otherwise used in such a manner as to evidence intent by the parties to make it marital property c) Intent of the original owner to treat property as marital governs d) Evidence (i) It is NOT enough to show mere use of property of income it generates without evidence of intent or that the couple regarded the property as marital (ii) If spouses jointly assume debt for a nonmarital property, it is transmuted (iii) Where one spouse makes contributions that enhance the value of the property, that spouse may get a special equity interest (iv) If an employee/spouse accelerates retirement benefits by waiving rights to survivors benefits, then the portion of the retir ement earned before the marriage are commingled and, thus, transmuted 5. Date for Determining Marital Assets: Property is acquired on the date a spouse files a divorce complaint or initiates other marital litigation. a) Value set on the date of filing (i) Later Changes in Value: taken into account in apportioning property (not voluntary reductions). (ii) Increases in Value: Family Court can take into account one partys contributions to increase or decrease value after filing of marital litigation. (iii) Evidence of Valuation: Uncontested testimony is sufficient (iv) No Evidence of Valuation: A party may not complain to this court that the trial courts valuation is unsupported by the evidence without offering proof of value at trial (v) Auction: if parties cannot arrive at a value for the property, the court can order a public auction and distribute the cash (vi) In successive divorce actions, valuation is based on the filing date for the action that results in division b) If appreciation occurs while divorce is pending, both parties will share in the change of value. 6. Special Equity a) Under SC statute, a spouse can get special equity in property meaning they either: (i) Have vested property rights in property titled in or owned by the other spouse 11

(ii) Have more than a one-half interest in jointly-owned property b) Basis (i) Usually a contribution of one spouses funds, property, labor, or other services, beyond normal marital duties, in the acquisition, improvement, or maintenance of the subject property c) Examples (i) Lack of Compensation: H acts as bookkeeper to Ws separate business without pay he may get an interest in the business (ii) Marital Residence: Spouse has interest in the appreciation of property she contributed to during the marriage 7. Marital Debt a) Definition: Something is marital debt if it was incurred during marriage for the benefit of both parties, even if in only one spouses name only. b) Presumption: that a debt of either spouse incurred prior to marital litigation is a marital debt and must be factored in the totality of equitable apportionment (rebuttable) c) Characterizing Debts (i) Debts acquired prior to marital litigation look at whether it was for the benefit of both parties (ii) Debts acquired after marital litigation only apportioned if shown it was incurred for marital purposes d) Burden of Proof: The burden of proving debt is non-marital is on the party challenging inclusion in the marital estate. (i) When debt is incurred before martial litigation begins, the burden of proof that a debt is non-marital is on the party challenging its inclusion. (ii) When debt is incurred after the commencement of the litigation but before decree, burden of proof that a debt is marital is on the party asserting its inclusion. e) Tax Liability: Parties must share tax liability, but one spouse need not pay penalties and interests caused by the other part ys failures. f) Debt owed to the parties that has been used to calculate the net value of an asset cant be apportioned again C. Equitable distribution vs. alimony: 1. Court may provide for equitable distribution of the martial assets without first determining alimony. 2. After determination of equitable distribution, court must consider whether judgment for alimony is to be made. 3. Money Payment Alternative: Court may order money payments in lump sum or installments in lieu of or to supplement distribution. These are vested rights that do not terminate upon remarriage or any deaths. 4. Transmutation of Individual Property: Individual property of a spouse may be transmuted into marital property when: a) Property becomes so Commingled as to be untraceable, b) Utilized by the parties in support of marriage c) Property is Titled jointly, or d) Property otherwise used in a manner as to evidence an intent by the parties to make it material property. 5. Special Equity: A spouse may have an equity interest in individual property if he contributes property, labor, or other services beyond the normal marital duty. D. Equitable distribution and other distributions 1. Factors Considered in Making Equitable Distribution: In determining how do divide the marital property, the court will assign weight to the following factors: a) Home: Desirability of retaining the marital home when: (i) Desirable to do so, (ii) In the best interest of child or party, and (iii) Financially feasible b) Need for Additional training c) Vested retirement benefits of each spouse d) Other factors necessary to do equity between the parties e) Contribution to marriage by each spouse: Includes care and education of children and homemaker services, but the court will look at the quality of those contributions. f) Support being paid or received for a prior marriage or child g) Whether separate maintenance or Alimony has been awarded h) Duration of marriage i) Child custody arrangement j) Physical health of spouses k) Emotional health of spouses l) Tax aspects of divorce m) Financial/economic circumstances of parties n) Fault/marital misconduct of either party, even if not the basis for divorce (i) Liens or Encumbrances on marital property and separate property debts o) Nonmarital property of each spouse E. Exclusive custody of marital home for specified period: 1. Court may award exclusive custody of the marital home to one spouse for a specified period. This is separate from award of the marital home in equitable distribution. 2. Factors (Johnson v. Johnson) to award the home as an incident of support, the court must: a) Begin with the premise that division/distribution of the marital home should be accomplished at the time of entry of the judgment of divorce b) Consider whether a party or the childrens interests are so predominant that an award of exclusive possession is compelled c) Consider the interests of the non-occupying spouse d) Consider the size/expansiveness of the home in relation to the expected use and cost of maintenance in comparison to the benefit of occupation e) Consider the potential duration of exclusive possession cant be unlimited period of time, must be reasonable f) Make some provision for eventual distribution and state terms upon which it will be made 3. These do not apply where the house is awarded through equitable distribution 4. Disability is a factor, especially if: a) The home was modified to meet the needs of and serve as an office to be used by the disabled spouse b) The disabled spouse cannot otherwise find adequate home and the home is adequate shelter for minors F. Modification of Property Settlements: A property settlement agreement is final and not modifiable, although it may be overturned for fraud or modified after an appeal or remand following appeal VIII. Child Support and Custody 12

A. Child Custody and Visitation 1. Custody a) General Rule: Best interest of the child: The baseline standard for all custody, visitation, and support decisions are the best interests of the child. b) Additional factors the court will consider in making custody decisions are: (i) The welfare of the children (ii) Childs reasonable preference must be considered (1) Based on childs age, experience, maturity, judgment, and ability to express preference (2) No error to fail to take testimony from 12, 8, and 5 year olds where trial counsel did not request it and GAL told judge that children preferred mother (iii) Domestic violence, including which party was the primary aggressor (iv) Primary caretakers are usually awarded custody unless unfitness is proven or childs welfare will be better served by a warding custody to other party (v) Immoral conduct of the parents if it directly affects the welfare of the child (vi) The psychological, physical, environmental, spiritual, educational, medical, family, emotional, and recreational aspects of each childs life (vii) Character, fitness, attitude, and inclinations of the parents (viii) Religion: Statutory preference for placing child with custodian of childs religion (ix) Written agreement of the parties: Court will honor agreement unless there is a good reason not to. (x) Guardian ad litems investigation and recommendation: GAL must present clear and comprehensive reports with conclusions but m ay not make a recommendation as to custody. c) Factors not considered in making child custody decisions: (i) Gender (ii) Race (iii) Tender Years d) Illegitimacy: Unless court orders otherwise, the custody of an illegitimate child is solely with the natural mother unless she has relinquished rights to the child. e) Priority: As between two parents, neither party has a superior claim to custody. The order as between a parent and a non-parent is to favor the parent (unless unfit), then the stepparent, then third parties (including grandparents). In determining priority the court may consider the childs preferences. f) Shared Parental Responsibility: Court has jurisdiction to order joint or divided custody if in the best interests of the child, but there is a presumption against shared custody and joint custody is not appropriate when one party appeals it. (i) Court should select one home as primary place of residence based on the best interests of the child. g) Non-Parental custody: The court may award custody to the non-parent if the parents are deemed unfit or relinquishes their parental rights. (i) The best interests of the child are paramount. Rebuttable presumption favors the parents so they win in nearly every case. (ii) In a custody contest between a parent and a non-parent, the court must consider four factors: (1) Parent must prove to be a fit parent, (2) Amount of contact, in form of visits or financial support that the parent had with child while in care of third party, (3) Circumstances under which temporary relinquishment occurred, (4) Degree of attachment between child and temporary custodian. h) South Carolina, like most other states, distinguishes between: (i) legal custody: (ii) physical custody: i) Joint (or shared) custody can mean: (i) joint legal custody (both parents share the decision-making), (ii) joint physical custody (the child spends significant amounts of time residing with each parent), or (iii) both joint legal and physical custody. j) Parenting Plans (i) Temporary Parenting Plan (1) At all hearings when custody is contested, each parent must submit to the court a parenting plan, which reflects parental preferences, the allocation of parenting time to be spent with each parent, and major decisions (e.g., education, medical, dental care, religious training). The court will issue temporary and final custody orders after considering these plans. (ii) Permanent Parenting Plan (1) At the final hearing, either party may submit an updated parenting plan for the courts consideration. 2. Visitation: a) In General (i) Parent without custody has a right to reasonable visitation, subject to the best interests of the child. (ii) Restrictions: Court may impose restrictions or conditions on visitation upon proper showing. An absolute denial of visitation is rare because a court will often be able to fashion a proper visitation process under nearly every circumstance. (1) Even in cases of domestic violence, court will allow visitation so long as there will be no danger to children or to the victim. (iii) Visitation is independent of support duties a parent cant withhold support because visitation is denied or withhold visitation to enforce payment of support b) Standard Scheme: Every other weekend, four weeks in summer, and alternating holiday. c) Forfeiture: A parent may forfeit rights to visitation by engaging in conduct that may injuriously affect the childs welfare or morals. d) Remedies for Denial: When a custodial parent has been denied reasonable visitation, the court may: (i) Award extra visitation to compensate for the loss, (ii) Award custody to non-custodial parent, or (iii) Punish by contempt of court. e) Grandparents (i) May be awarded visitation by the court where: (1) One parent is deceased or the parents are divorced and living separate and (2) Upon a written finding that visitation is in the best interests of the child and (3) The visitation will not interfere with the parent-child relationship (ii) Troxel v. Washington 13

(1) Pursuant to Washington statute that said any person could petition the court for visitation rights to children at any time, the court awarded increased visitation with grandparents over mothers objections (2) Supreme Court said that violated the mothers substantive due process rights (3) SC case, Camburn v. Smith, cited and said that in order to award visitation to grandparents, the parent must be shown to be unfit by clear and convincing evidence or compelling circumstances must exist to overcome the presumption that parental decision is in the childs best interest f) Siblings: Sibling visitation may be awarded if in the best interests of the child. g) Psychological Parents (i) Definition: a person who, on a continuing day-today basis, through interaction, companionship, interplay, and mutuality, fulfills a childs psychological and physical needs for a parent and provides for the childs emotional and financial support (ii) Elements (1) That the biological or adoptive parents consented to, and fostered, the petitioners formation and establishm ent of a parent-like relationship with the child (2) The petitioner and child live in the same house (3) The petitioner assumed obligations of parenthood by taking significant responsibility for the childs care, education, and development, including contributing toward the childs support, without expectation of financial compensation (4) That the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature h) Visitation Disputes: A dispute over visitation can be brought to the family court pro se 3. Guardian ad litems (GAL): a) Appointment: Court can appoint a GAL (which is by court order) in a private custody or visitation case only after it determines that: (i) Without GAL, the court will likely not be fully informed about the facts of the case and there is substantial dispute that necessities GAL, or (ii) Both parties consent with the approval of the court. b) Qualifications: A GAL can be either an attorney or a layperson. Minimum qualifications are: (i) Twenty-five years old or over, (ii) High school diploma or equivalent, (iii) Attorney: GALs must have 6 hours Continuing Legal Education (CLE) in family law (may be waived) (iv) Layperson: Must have 6 hours CLE in family law a year and before they qualify, must: (1) Minimum of 9 hours of CLE in custody and visitation (2) 3 hours related to substantive law and procedure (3) Must observe 3 contested custody merits hearings (v) Cannot have been convicted of certain crimes, (vi) Cannot have ever been listed in the DSS central registry of abuse and neglect, and (vii) Affidavit to all of the other requirements must be provided by GAL to court and the parties. c) A GALs duties are: (i) Representing the best interests of the child, (ii) Conducting an independent, balanced, and impartial investigation including at least: (1) Considering the wishes of the child, (2) Obtain criminal histories of parties, (3) Visit home settings if appropriate, (4) Review of relevant documents, except unrelated financial records (can view medical records of child and can petition for parents medical records) (5) Interview all relevant persons with knowledge (parents, teachers, etc.) (6) Meet and observe the child at least once. (iii) Advocating for the childs best interest by making clear and specific suggestions for evaluation, service s, and treatment for the child and family when necessary (iv) Attending all court hearings (v) Maintaining a complete file, including notes (vi) Presenting clear and comprehensive written reports including a final report with conclusions but may not make a recommendation as to custody. 4. Modification of custody between parents: a) All custody issues, including visitation and residence, are modifiable: The court entering the custody order retains the jurisdiction to modify it. b) Test: To modify a custody order, the party seeking modification must show a substantial change of circumstances affecting the childs welfare. The standard remains the best interests of the child. c) Relocation of Child: The best interest of the child controls and there is no presumption against relocation of the child. Court might consider factors such as: (i) Reasons to seek or oppose the move (integrity of motives), (ii) Quality of relationship between child and parents, (iii) Impact of the move on quality of childs contact with noncustodial parent and whether cost of transportation is affordable, (iv) Degree to which move enhances childs economic, educational, and emotional interests, (v) Feasibility of preserving non-custodial parent-child relationship through visitation, (vi) Impact of the move on quality of life of the custodial parent and that the decision is not impulsive, (vii) Whether move is in the childs best interests d) Effect of Divorce Decree on Relocation and Custody: If the divorce order enjoins relocation, parent must show change of circumstances to modify that order. If silent or there was no divorce decree, the custody will not change if move is in good faith and is not vindictive. Will use the factors above. B. Child Support 1. Allocation of duty: Generally, both parents equally share the duty to support their children unless circumstances cast a greater burden on one or the other (usually because of monetary need and ability to pay). 2. Guidelines: a) Child support is governed by the DSS Child Support Guidelines, which sets a presumptive amount of child support. The Guidelines amount is rebuttably presumed proper. 14

(i) Deviations are rare but possible if justified (1) The court must enter written findings and justification and show good cause for the deviation (2) The court has no discretion in applying the guidelines, but has discretion to deviate from them (ii) If combined income is over $180,000, then it is decided on a case-by-case basis 3. Criteria for deviation from Guidelines: a) Consumer debts b) Support obligation for persons living obligor parent c) Mandatory deduction of retirement pensions and union fees d) Significant available income of child e) Educational expenses for child or spouse f) Equitable distribution of property g) Families with six or more children h) Unreimbursed extraordinary medical/dental expenses for child, noncustodial parent, or custodial parent i) Non-court ordered child support from another relationship (reversible order not to consider) j) Monthly fixed payments imposed by court or by operation of law k) Agreement reached between the parties (provided it serves best interests of child) l) Rehabilitative, reimbursement, or lump sum alimony m) Substantial disparity of income 4. Agreements: The parties may agree to different amounts of support than the Guidelines, but the agreement is subject to review by the courts. 5. Temporary child support pending paternity determination a) Upon motion of either party, court must issue temporary child support order pending paternity determination if: (i) Defendant has signed voluntary acknowledgement of paternity, (ii) Defendant has been determined to be the parent pursuant to law, or (iii) There is other clear and convincing evidence that defendant is the childs parent 6. Transferring property to avoid paying child support: These transfers are clearly and utterly void as far as determining child support obligations. 7. Specific Expenses a) Medical expenses of child: Custodial parent pays the first $250 and the rest is split between the parents pro-rata. b) Educational/College Expenses: (i) General rule is that a parent does not have to pay for educational expenses past the age of 18, but the court has the authority to include a support order for educational expenses. (ii) Court can order child support for higher education beyond the age of 18 if: (1) Child will benefit from the education, (2) Child demonstrates ability to do well or at least make satisfactory grades, (3) Child cannot otherwise go to school, and (4) Parent has the financial ability to help pay for such education. (iii) Educational expenses include tuition, fees, room, board, clothing, and transportation. The child has no duty to mitigate these costs. (iv) Parent can contractually obligate himself to pay for education expenses beyond the age of 18. 8. Imputing income: Income will be imputed to a voluntarily unemployed or underemployed parent unless there is a physical or mental incapacity, or other circumstances over which the parent has no control. a) The law presumes that a parent is earning to the full capacity of his potential income. b) Self Employed Income: Gross income is the gross receipts minus ordinary and necessary expenses but the court should exclude from those expenses amounts allowed by the IRS for accelerated depreciation. 9. Procedures a) For any proceeding where child support is to be established or modified, the procedure is as follows: (i) File Financial Statements (ii) Calculate total support from guidelines or as calculated by the court if combined income over $180,000 (iii) Assign percentages 10. Duration a) Terminates when the child (i) Turns 18 (ii) Marries (iii) Becomes self-supporting b) This is not applicable where the child is disabled or some other exceptional circumstances exist c) If a child turns 18 and is in high school and making satisfactory progress toward completion, then the court can order support to continue and it will end at the earlier of (i) At graduation OR (ii) When child turns 19 IX. Interstate Aspects of Decrees and Orders A. Recognition of Foreign Divorce Decrees 1. Where One Spouse Participated a) Domicile to one of the parties to a marriage is sufficient for the state to render a divorce, even if there was no personal service on or domicile of the other party in that state b) Where only 1 spouse participates in a divorce proceeding, the other spouse has the right to attack the finding of the domicile of the procuring spouse, because there has been no contested hearing on the issue of domicile in the rendering state (i) When the procuring spouse returns to his original domicile soon after the divorce or (more conclusively) originally bought a round-trip ticket, the other spouse can probably attack the out-of-state decree (ii) But, it is presumed valid until attacked 2. Where both spouses participated a) If both spouses participate in an out-of-state divorce, they are collaterally estopped from attacking it because the issue was or could have been litigated b) Consent jurisdiction binds the parties and protects from collateral attack 3. Divisible Divorce 15

a) A divorce obtained outside of SC in an action where personal jurisdiction was not obtained over the other spouse does not impair or destroy the right of the other spouse to alimony or equitable division of property as provided for under SC laws 4. Divorce Decree from a Foreign Nation a) State does not have to recognize B. Full Faith and Credit for Child Support Orders Act 1. This federal act requires each state to give full faith and credit to child support orders entered in other states if: a) The issuing court had subject matter jurisdiction b) The parties were given notice and reasonable opportunity to be heard 2. In such cases, the issuing court has continuing, exclusive jurisdiction to modify the order so long as: a) The child or one of the parties resides in the state; or b) The parties consent on record to the courts exercise of jurisdiction. C. Uniform Interstate Family Support Act (UIFSA) 1. This uniform law addresses issues of interstate enforcement of spousal maintenance (alimony) and child support orders. The Uniform Interstate Family Support Act (UIFSA) has been adopted in all 50 states and is codified in the South Carolina Code. 2. The UIFSA governs jurisdictional issues where more than one state is involved in a family support action. 3. Jurisdiction a) Initial Personal Jurisdiction over Defendant (i) In a proceeding to establish, enforce, or modify a support order, or to determine parentage, a South Carolina court may exercise personal jurisdiction over a nonresident if: (1) The person is personally served in SC (2) The person submits to jurisdiction by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction (3) The person resided with the child in SC (4) The person resided in the state as a result of the acts or directives of the person (5) The child resides in the state as a result of the acts or directives of the person (6) The person engaged in sexual intercourse in South Carolina, and the child may have been conceived by that act (7) The individual asserted paternity by filing with the Responsible Father Registry (8) There is any other basis consistent with the federal and state constitutions for the exercise of personal jurisdiction. b) Continuing, Exclusive Jurisdiction (i) Once another state has issued a child support order consistent with the jurisdiction requirements of the UIFSA, South Carolina courts have continuing, exclusive jurisdiction over the order so long as one of the parties remains a resident of South Carolina. D. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) 1. Provides one court with continuing jurisdiction over a child to protect the childs best interests. Jurisdiction is usually v ested with the state that has the closest connection with the child. 2. Initial Jurisdiction a) An SC court competent to decide child custody matters has jurisdiction to make custody determination, by initial or modification judgment, if one of the following criteria is met: (i) SC is the home state of the child: Childs home state at the time the proceeding commences or within previous 6 months and ch ild is absent due to one parents removal but one parent continues to live in SC. (ii) No other state is the childs home state, or the home state has declined to exercise jurisdiction on the ground that SC is the more appropriate forum AND the child and at least one parent or person acting as parent have a significant connection with SC beyond physical presence (1) Substantial evidence must also be available in the state concerning the childs care, protection, training, and personal relationships (iii) All other states having home state or significant connection jurisdiction have declined to exercise jurisdiction, deferring to SC as the more appropriate forum, or no other state has jurisdiction under these standards b) Also, SC has temporary emergency jurisdiction if the child is present in SC and has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse 3. Declining Jurisdiction a) If a state has jurisdiction under the UCCJEA, a court of the state may decline to exercise jurisdiction if it finds that the state is inconvenient and another state is a more appropriate forum, considering (i) The length of time the child has resided outside the state (ii) The distance between the courts in the 2 states (iii) Financial circumstances of the parties (iv) Parties agreement as to which state would assume jurisdiction (v) The nature and location of the evidence needed to resolve the pending litigation (including testimony of child) (vi) Ability of each court to decide the issues expeditiously (vii) Familiarity of the court in each state with the facts and issues in the pending litigation b) State may also decline to exercise jurisdiction if a person seeking to invoke jurisdiction has engaged in wrongdoing, like kidnapping the child 4. Continuation a) Jurisdiction continues in the SC until (i) SC court expressly determines that neither the child, his parents or one acting in parental capacity have significant connection with this state and there is no longer substantial evidence available in SC concerning the childs care (ii) The court of SC or another state determines that neither the child nor any parent or parental figure presently reside in SC (iii) Another SC or federal statue terminates jurisdiction b) An SC court that has made a custody determination and does not have exclusive, continuing jurisdiction may modify that determination only if it has jurisdiction to make an initial determination 5. Out-of-State Custody Decrees: a) An out of state decree will be enforced inSC if a certified copy of the decree is filed with the clerk of family court. b) Wrongful Removal: Under UCCJEA, if a child is wrongfully taken from a state, or is wrongfully retained after visitation, child does not gain a new home state, regardless of length of time, and that state court does not gain jurisdiction. c) Modification (i) SC court cannot exercise modification jurisdiction if another state unless: 16

(1) The SC court has jurisdiction to make an initial determination AND (a) The court of the other state determines it no longer has exclusive, continuing jurisdiction or that SC would be a more convenient forum OR (b) A court of this state or the other state determines that neither the children or parents/guardian reside in the other state 6. Enforcement of Custody Decrees: If a non-custodial parent kidnaps a child and moves them to another state, the custodial parent must: a) File custody decree in foreign jurisdiction and obtain an order enforcing the decree or b) Obtain a writ of habeas corpus from the foreign jurisdiction and serve it on the snatcher. c) Only questions at habeas corpus hearing is whether the original custody order was valid and whether the petitioner is entitled to the child by law. Not a merits hearing! 7. The Uniform Child Abduction Prevention Act (UCAPA): Expands abduction preventions found in the UCCJEA to all custody and visitation cases. 8. With court asserting jurisdiction, need to separate between the original jurisdiction and continuing jurisdiction if modification or something else comes up later. E. Modification of Alimony, Child Support, or Visitation 1. Right to Modification: An alimony, child support, or visitation decree can be modified with a court with jurisdiction (usually the issuing court) upon a showing of substantial change in the circumstances or financial ability of either party to pay. 2. The right to modification does apply retroactively when modified by the court of appeals. 3. Child Support and Visitation Factors: In modifying an award of child support or visitation order, the court will consider: a) Changes in the parents finances b) Changes in the childs need c) Note that remarriage may terminate some forms of alimony and that can be considered in reassessing the financial positions of the parents. 4. Lump Sum or No Initial Alimony Award: If court did not reserve jurisdiction to award alimony in the future, there is no award to modify, and all rights to alimony are terminated. Similarly, a lump sum alimony award cannot be modified in the future unless court reserved the right to do so. 5. There is no retroactive application of the modified amount however, this is not the case for an amount awarded and then appealed F. Enforcement of Alimony and Child Support Decrees 1. Generally: a) Security: Court can require Payor to maintain life insurance or provide other security to guarantee payment of child support or alimony, but the court needs a compelling reason for doing so b) Criminal Offense: No-support of a spouse or child is a criminal offense, although rarely used because of the available contempt order. c) Uniform Interstate Family Support Act (UIFSA): A person owed a duty of support may pursue an action in *SC for that support against an out of state obligor. Thus, there is no need to travel to the obligors state to enforce a decree. (i) Action is brought in the family court. (ii) The law of the state or nation in which the obligor resides controls. d) Contempt: An obligor who defaults may be held in contempt by the court who issued the decree or order. Being behind in child support or alimony can also lead to contempt even after the child reaches majority or the alimony terminates for whatever reason. (i) Sanctions: Sanctions for contempt include fines up to $1500, up to 300 hours of community service, or up to a year in jail (although a jury trial may be needed for more than 6 months, but since no jury trial in Family Court 6 months may be the limit). (ii) Civil Contempt: A contempt order with the primary goal of bringing the wrongdoer into compliance with the order. Abatable by the wrongdoer upon compliance with the order. (1) Only available if the obligor has the ability to comply. (iii) Criminal Contempt: A contempt order with the primary goal of punishing the wrongdoer. Not abatable, and the fine or imprisonment does not go away by subsequent compliance. (1) Disobedience must be proven beyond a reasonable doubt. X. Attorneys Fees in Divorce Action A. Generally: 1. Whether to grant attorneys fees, costs, expert fees, etc. is within the discretion of the court. B. Test: Attorney must show: 1. Beneficial result for the client 2. An account of time and effort. C. Factors considered in awarding reasonable fees and costs: 1. Nature, extent, and difficulty case 2. Time necessarily devoted to case 3. Professional standing of counsel (essentially his experience) 4. Contingency of compensation 5. Beneficial results obtained 6. Customary legal fees for similar services D. Prohibitions 1. Rules of Professional Conduct prohibit joint representation 2. Attorneys cannot charge a contingency fee in divorce actions a) Contingency fees can be used to enforce property settlements, child support awards and alimony awards after divorce E. Statutory Authority for Awarding Fees is required 1. Divorce: statute permits 2. Termination Case: the court can compensate the GAL, but there is no statutory authority to award fees to parents counsel whe n the State prevailed 3. Action brought in a different court: family court may not award fees 4. Pro Se party: no fees, whether the litigant is an attorney or layperson 5. Abuse and Neglect: family court can award fees and costs to a party where DSS brings a frivolous action against them a) But by statute, DSS is exempted from liability where it acts without substantial justification, as long as this does not rise to the level of frivolous F. Attorney Sues Client for Fees 1. Unsecured fee: ordinary action to recover fees pursuant to a fee agreement between an attorney and the client is an action at law with the right to a jury trial even if client does not timely appeal a denial of his request for a jury trial 2. Fee Secured by Lien: Where attorney and client agree that the fees are secured by a lien of the proceedings of any judgment he gets for the client, the action to recover under the lien is an action in equity and there is no jury trial G. Reimbursement for Expenses 17

1. Private Investigator: an adulterous spouse who wont admit it can be required to pay the expenses of getting evidence ag ainst him 2. Valuation: family court can order spouse who refuses to provide evidence as to property values to reimburse for the costs of a CPA XI. Paternity A. Legitimacy: Legitimacy of a child establishes a strong presumption of paternity that can only be rebutted by clear and convincing evidence. The law will make every reasonable presumption in favor of finding legitimacy. 1. Legitimacy arises from: a) Child of a valid marriage (even when marriage is of questionable validity) b) Child of a voidable marriage (annulment does not affect legitimacy of children) c) Child born after termination of marriage, but within gestation period. B. Illegitimacy arises from: 1. Child of a void marriage, but law will protect innocent child if parties were bigamous or entered into marriage in goo d faith and in ignorance of others incapacity. 2. Child born out of wedlock, subsequent marriage will legitimize. C. Acknowledgment: 1. Voluntary acknowledgment of paternity creates a rebuttable presumption of paternity and is admissible to prove paternity. a) The doctrine of estoppel may operate to confirm the presumption of marital paternity when the mothers husband learns that he is not the father but continues to support the child and hold her out as his own and never tries to deny parentage through any judicial proceeding 2. Divorce Decree: If a divorce decree establishes paternity and not challenged, res judicata will prevent later claim of no paternity (unless there was fraud involved). D. Paternity Established by Judicial Proceedings: 1. Who Can Bring Action a) Any woman who is pregnant or has a child b) Any man who believes he may be the father c) The child d) Any person who is caring for child e) Authorized agency. 2. Statute of Limitations: There is no statute of limitations on paternity actions. 3. Venue: Family court in county of child or putative father. 4. Genetic Testing: May be used as evidence of paternity or lack of paternity. Must be weighed with the other evidence, and the court can order the test on its own motion or that of a party of: a) Child, b) Mother, c) Putative father, and d) Any male witness who says he slept with mother and may have led to pregnancy. 5. Final Order: Can order either or both parents to contribute to support of the child, any other relief deemed reasonable, and may be modified. 6. Duty: Once paternity is established, the duty of support attaches. E. Settlements: A party cannot contract or waive the right to child support. F. Artificial Insemination: Child born as a product of artificial insemination is irrebuttably presumed to be legitimate if both husband and wife have consented to the procedure. The consent does not have to be in writing and can be implied from conduct. XII. Adoption A. Generally: Adoption creates a legal relationship whereby the child is deemed the child of the adoptive parents for every purpose, including inheritance. 1. Adoptive parents are entitled to all rights and privileges and are subject to the same obligation as if the child were born to the adoptive parents in lawful wedlock. 2. Biological parents duty of support ceases after signing a relinquishment or consent for adoption. Arrearage of child support is not affected by this relinquishment and can be relieved by the court. B. Who can be adopted: 1. Any child present in SC when petition for adoption is filed, regardless of place of birth residence. 2. A spouses child or a child related by blood or marriage certain requirements will be waived 3. Any adult can adopt another adult with the consent of the adult adoptee or his guardian and the adoptive parents spouse, if any. C. Who may adopt: 1. Any SC resident, but SC residency is not required (interstate adoption ok) if: a) Child is to be placed with a relative related biologically or by marriage, b) Unusual or exceptional circumstances such that childs interest would be best served by adoption out of state, (i) Court must find unusual circumstances, including: (1) Adoptive parents participation in birth of child, (2) Bonding between adoptive parents and child, or (3) Birth parents selection of adoptive parents. c) At least one of the adoptive parents is in the military and stationed in SC, d) Child is a special needs child, e) Child has been in foster care for at least six months after freed for adoption and no SC resident has been identified as prospective adoptive home, or f) Notoriety concerning child or childs family and it would be in the best interest of the child to be placed out of state. 2. Who Must Consent: Unless excused by the court, all of the following people must consent to the adoption: a) Unmarried Father (unwed at birth): Depends on the age of the child: (i) Older than 6 Months: Unmarried father must consent if he has maintained contact by paying support and either: (1) Visiting child at least month if able and is not prevented from doing so by agency or person having custody or (2) Having regular communication with child or custodian when he cannot visit (even though his subject intent to do so may not meet this prong (ii) Younger than 6 Months: Unmarried father must consent if: (1) Father lived with mother for 6 months immediately preceding placement for adoption and held himself out as father or (2) Father paid support for child, expenses of mothers pregnancy, or birth expenses. 18

(3) Statute will not be strictly construed, so where father makes a good faith effort to do these things that are frustrated by another party, he will thus have a right to consent. b) Adult To Be Adopted and Spouse of Person Adopting (i) Legal Guardian, Agency, or Legal Custodian if: (1) Both parents are deceased or (2) Both parents rights have been judicially terminated. c) Unmarried Mother (unwed at birth) d) Minor: If more than 14 years old unless court determines minor does not have capacity to consent or the best interests of child would be served by not consenting. e) Agency: The agency or person facilitating the adoption if child has been relinquished for adoption to that agency or person. f) Parents: The parents or surviving parent of a child conceived or born during the marriage of the parents. D. Timing of consent: Consent must be procured after the birth of the child, but it is unclear whether pre-birth consent can be ratified. E. Withdrawal of consent: A withdrawal of consent to adoption is not permitted except: 1. There is a court order, 2. After notice and opportunity to be heard is given to all persons concerned, and 3. The court finds: a) Withdrawal is in the best interests of the child and b) Consent was not given voluntarily or was obtained under duress or through coercion. 4. Final order of adoption makes consent irrevocable. 5. Consent is not revocable simply because of parents minority. F. Payment: 1. The law forbids the payment of compensation for giving payment. 2. Payment made be made for: a) Reasonable living and medical expenses for mother and child, b) Feeds for obtaining investigations or reports, c) Fees for individuals authorized to take consents, d) Fees for attorneys, child placing agency, and GAL. G. Petition for Adoption Possible but not likely 1. Requirements a) Must be filed within 60 days from the date the child is placed with the proposed adoptive parents. Unless good cause shown, the petition must include: (i) Any required consents or relinquishments, (ii) Pre-placement report, (iii) Background investigation report, (iv) Statement of all adoption related payments made within the past five years or to be made in the future by petitioner. b) GAL must be appointed. c) Hearing may not be held until at least 90 days after filing of the petition. d) Notice: Anyone who has not consented and may be a biological parent must be notified of the adoption proceedings, unless only because of incest or criminal sexual conduct. e) A Post-Placement Investigative Report must be completed before final hearing (i) Petitioner is to have temporary custody of the adoptee once the adoptee is received and petition is filed (ii) The Report evaluating the suitability of the prospective parents must be completed before the final hearing 2. Final Hearing a) Requirements: Before an adoption will be granted, the court must make specific findings: (i) Disbursements made and accounted for, (ii) Adoptee in actual custody for 90 days unless good cause shown, (iii) Best interest of child is served by adoption, (iv) If petitioner is a non-resident of the state, appropriate compliance with the law allowing non-resident adoption, (v) All necessary consents/relinquishments obtained, (vi) Appropriate notice to all specified parties, (vii) Petitioner is a fit and proper parent. b) The effect of the final decree of adoption is to establish the adoptive parents rights vis--vis the child as though it were their natural child and to relieve the biological parents of all parental rights and obligations. (i) An amended birth certificate will be issued upon final decree. c) Hearings are confidential and will be sealed unless good cause to unseal (compelling need). 3. Appeal a) Except for an appeal, no party to an adoption proceeding may question the validity of the adoption because of any defect or irregularity, jurisdictional or otherwise b) Any party to an adoption may appeal the final decree c) The court may grant collateral relief from the judgment on the grounds of extrinsic fraud unless the judgment could have been prevented by due diligence 4. Miscellaneous a) SC law waives most of the requirements when adoption of a step-child or child related by blood or marriage. b) There is no equitable adoption in SC (i) Meaning stepparents owe no support obligation to stepchildren (ii) If they voluntarily assume such an obligation, they can stop at any time c) Open adoptions are permissible and allowing visitation or exchange of information to a biological parent does not affect the validity of the adoption and the agreement is not enforceable XIII. Minors and the State: Child Abuse and Dependency Cases A. Generally: The welfare of a child is ultimately the responsibility of the state. Statute governs certain situations where the state will intervene to protect a child. 1. Mandatory reporting: 19

a) Any incidents of child abuse that are known or suspected must be reported. b) Healthcare professionals, clergy, school teachers and officials, law enforcement, film processors, funeral home workers, and judges are reported by law to report. c) Failure to report is punishable by jail or fine. 2. Abused or neglected children: a) A child is abused or neglected if his physicals or mental health is harmed or at substantial risk of harm. b) Harm is defined as: (i) Being abandoned: Able parent makes no effort to support or communication with child and there is no intent to return. (ii) Being abused: Parent commits willful act that injures or is likely to significantly impair the childs each: excluding reasonable corporal punishment. (iii) Being neglected: (1) Financially able parent deprives child of necessities, schools absences are not considered neglect unless school first made effort to secure attendance and parents refused to cooperate. (2) Financially unable parent refuses necessary services, or (3) The duty to provide for children is not dependent on custody, a non-custodial parent can be found guilty of neglect. (4) Encouraged delinquency of child by condoning or approving of conduct. 3. Emergency protective custody: a) An officer without court order can take a child into protective custody without parental consent if: (i) Probable cause of imminent danger and no time for court order, (ii) Parent arrested and child welfare is threatened, or (iii) Child is law and welfare is threatened: the parents not found. b) The court can issue an ex parte order for protective order without parental consent if: (i) Court or officer reasonably believes the child is in imminent danger of loss f life or physical safety and the parents are unavailable or wont consent. (ii) No authority to order payment of child support while in state custody. 4. Liability for False Report a) DSS Suit: If court finds that a report was made maliciously or in bad faith, DSS can bring an action to recover costs of investigation b) Victim can also bring an action for actual and punitive damages, along with attorneys fees B. Termination of parental rights: 1. Grounds for terminating the parent-child relationship: a) Child has been harmed and (because of severity or repetition), it is not reasonably likely that home can be made safe in twelve months (i) Court may consider parents previous abuse or neglect of a child in the home in determining if it can be made safe b) Presumptive legal father is not biological father and welfare of child best termed by termination of rights of presumptive father. c) Child has been removed from parent, has been out of the home for six months (either by court order or with agreement of parents) and parent has not remedied conditions that caused the removal. d) Child has lived outside the home either parent for six months and parent has willfully failed to visit child. (i) Incidental visits may be given little weight, must prove the parent was not prevented, and the court must take into account the distance from the parents home. (ii) A dad is prevented if he is incarcerated and the state did not allow his visitation. e) Child has lived outside the home for 6 months and either parent has willfully failed to support child. (i) Failure to support means failure to make material contributions to food, shelter, clothing, etc, in accordance with their means (ii) Court will consider the parents ability to support the child and custodians requests for support f) Child has been in foster care under responsibility of the state for 15 of last 22 months. g) Parent has diagnosable condition unlikely to change within a reasonable time (like alcoholism) and condition makes parent unlikely to provide minimally acceptable care for the child. (i) Failed twice to complete treatment program or refused to participate in DSS meetings at least twice are proof that they are unlikely to change within a reasonable time. h) Parent has willfully abandoned/surrendered physical possession of the child without making adequate arrangements for childs needs and care. i) Physical abuse of child resulted in death or admission of hospital for in-patient care and plaintiff has been convicted of or pleaded nolo to committing, aiding, abetting, or soliciting offense against child, criminal domestic violence, or common law assault and battery. j) A guilty or nolo plea or a conviction for the murder of the childs other parent. 2. Petition to terminal parental rights: a) Action for termination of parental rights may be brought by child protective services or any interested person. b) There must be serving on the parent, although publication is acceptable if parent cannot otherwise be served. (i) Usually this is if fathers name is not known if the name is know, there must be due diligence in seeking him 3. Termination action: a) Burden of proof in termination action: (i) Termination requires a showing of clear and convincing evidence. (ii) In addition to showing statutory grounds (which are to be liberally construed) and that termination serves the best interest of the child. b) Representation by counsel in termination actions: (i) If the parent is not represented by counsel, not in default, and unable to afford an attorney, the court must appoint one. (ii) Guardian ad litem must be appointed for the child and must appoint an attorney for the child if GAL is not an attorney and thinks one is necessary. (iii) GAL may get counsel on a case-by-case basis. GAL must have counsel in a contested case, even if she is an attorney 4. Effect of termination: a) Termination of Parental Rights (TPR) divests the parent of all rights and responsibilities except for the childs right to in herit from the parent. b) Childs right of inheritance is terminated only by a final order of adoption. C. Foster care: 1. Child in the states custody may be placed in foster care until either reunited with the natural parents or adopted. 2. The goal of foster care is to provide a permanent, stable home as quickly as possible. 3. Who Can Be Foster Parents 20

a) Person must apply to be licensed as a foster parent, there must be a fingerprinting of all persons in the household 18 or older, and cannot have been convicted or pled nolo to a number of different offenses. 4. Who Cannot Be Foster Parents a) No child may be placed in foster care with a person (i) With a substantial history of child abuse or neglect, or (ii) Who has pled guilty or nolo contender to, or has been convicted of: (1) An offense against the person (2) An offense against morality or decency (3) Contributing to the delinquency of a minor 5. Training and Compensation: DSS provide pre-service and annual training and the foster parents are compensated by the state or damages and other property loss caused by the child. D. Delinquency 1. Generally: Child is eligible for detention in secured juvenile detention facility only if the child: a) Is charged with a violent crime as defined in the SC Code, b) Is charged with a violent crime, that if committed by an adult, would be a felony other than a violent crime and (i) Child is already detained or on probation or conditional release, (ii) Has a record of willful failure to appear at court, (iii) Has a recent record of violence conduct resulting in physical injury, (iv) Has a felony record with a risk of flight or serious harm to others, or (v) Used a firearm in the offense, c) Is a fugitive, or d) Requests protective custody 2. Place and time of detention: a) Act Not a Crime for Adult: If the act committed would not be a crime for an adult, the juvenile must not be placed in an adult facility and can stay in juvenile facility no longer than 24 hours. (i) Unless previous court order (ii) Must have detention hearing within 24 hours excluding weekends and holidays to determine probable cause. b) Act Is Crime for Adult: If the act committed was a crime for an adult and not waived to General Session for disposition as an adult, juvenile can be confined to adult jail for no more than six hours in an area segregated from adults. 3. Penalties: a) The purpose of juvenile proceedings is to rehabilitate the child. b) Family court can place child on probation or under supervision in his home or in custody of suitable person elsewhere under conditions that court imposes. c) However, probation is not administrated as punishment. For example, the court cannot tell child to go on school property because that denies child their right to education. XIV. Miscellaneous A. Time Limitations: Actions for separate support and maintenance or divorce must be brought to a final hearing within nine months of filing, or will be dismissed, absent unusual circumstances leading to specific order continuing the case. No provision for consent or good cause extension. B. Family court rules differing from South Carolina Rules of Civil Procedure (SCRCP): 1. No summary judgment available. 2. Certain documents may be admitted without requiring persons in charge of them to come to court. 3. No formal discovery unless specifically ordered. 4. No jury available. 5. Court may allow use of leading questions outside of cross-examination. 6. If there is no family court judge presiding in the circuit, jurisdiction in all matters arising may be exercised by a judge of any adjoin circuit, upon affidavit showing absence of the judge in the circuit in question 7. To preserve right of appeal, party must bring Rule 59(e) motion to alter or amend the courts judgment. 8. Financial declarations are required of all parties in all actions where the financial condition of a party is relevant 9. The family court judge may conduct a conference with any children involved in any case, and it is within the judges discretion whethe r to allow the guardian ad litem or any attorneys to be present 10. Use of childrens testimony and their presence in the courtroom is discouraged 11. Expedited Court of Appeals Review: There is expedited review of certain proceedings involving children, usually requiring oral argument within 30 days and written opinion entered within 30 days of oral argument, or of the last pleadings if no oral argument. C. Alternative dispute resolution (ADR): Family court has jurisdiction to authorize parties to use ADR provided parties designate mediator by unanimous consent. Some counties mandate ADR (Richland, Florence, Lexington, Greenville, Horry, Charleston) D. Guardianship 1. In General a) A family court can order guardianship of a person if there is a determination of incapacity. b) Person is entitled to due process protections, notably notice, the right to counsel, and a hearing. 2. Effects: a) Person may lose a number of rights, including driving, voting, and marrying. b) He still has the right to a qualified guardian, to be treated humanely, and have notice of hearings. 3. Guardians a) Guardians are appointed by the court and could be a public guardian if there is no other person available, and the guardian can exercise those rights that have been removed from the incapacitated person and delegated to the guardian. Some actions may require court approval. E. Judicial estoppel applies F. Standard of review is a preponderance of the evidence