I recently was involved in a matter that involved a father denying visitation of his children from his ex-wife. The devil is always in the details, but in a nutshell, the ex-wife was granted standard visitation by the Family Court with alternating holidays. The father somehow became convinced (with no evidence mind you) that mom was mentally unstable and a habitual drug user. The facts of the case were that mom did go to court ordered counseling following the divorce specifically as a condition for visitation. Mom went to weekly sessions for 90 days and was cleared by the treating therapist to be released from further sessions. It was at this point in time that father stopped allowing mom her ordered visitation.
In a scenario like this, what is mom, or for that matter, anyone supposed to do to make the other party abide by the Order of the Family Court. The mechanism in place to address these matters in South Carolina Family Court is a Rule To Show Cause Hearing.
SOUTH CAROLINA FAMILY COURT RULE 14 - RULE TO SHOW CAUSE
In its most basic form, a Rule to Show Cause hearing is an action claiming contempt of court. It is a legal action where the complaining party is alleging that the other party is acting in violation of a previous court order issued by the Family Court. This is the core of any Rule to Show Cause proceeding. It would apply to any violation of a Family Court order, whether it be preventing visitation, or failure to pay alimony or pay child support.
STEP ONE - FILING THE RULE TO SHOW CAUSE AND SUPPORTING AFFIDAVIT
The Rule to Show Cause is initiated by the filing of a legal Complaint asking the Court to set a hearing date to hear the allegations of the aggrieved party. The Rule to Show Cause request is much akin to a Complaint that initiates a lawsuit, only more condensed. The document will state the following:
- Specific request for a Rule To Show Cause Hearing to be Scheduled,
- The specific allegations being made that bring about the contempt of the court order,
- Request for relief, and
- Supporting affidavit of the aggrieved party
The last element listed above is critical in the pursuit of any Rule to Show Cause Action:
South Carolina Family Court Rules, Rule 14 (c) requires that the Complaint that initiates a Rule to Show Cause Hearing must have attached an Affidavit from the complaining party that states the facts and the specific Court Order that is the basis of the claim. The Affidavit is a notarized, sworn statement under oath that sets forth the allegation from the perspective of the aggrieved party. It is a fatal flaw to the underlying request if the Affidavit is not included with the Rule to Show Cause request.
STEP TWO - SERVICE OF THE RULE TO SHOW CAUSE
When your attorney files the Rule to Show Cause, the Judge will review the Complaint and supporting Affidavit. If the Judge feels that a Rule to Show Cause Hearing is warranted, the Judge will issue a hearing date on the Rule to Show Cause and return a filed copy of the Rule to Show Cause with a hearing notice attached to your attorney. At this point in time, the Rule to Show Cause and the Notice of Hearing must be served on the party who is allegedly in violation of the Court Order. There are two relevant Rules on point about how service of a Rule to Show Cause must be accomplished:
South Carolina Family Court Rules, Rule 14 (d) requires that the Rule to Show Cause and the Hearing Notice must be served upon the alleged party in contempt at least 10 days prior to the Hearing.
SCFCR Rule 14 (d) does allow the Family Court judge, in their discretion, to shorten this notice requirement in emergency situations. However, in the vast majority of cases, the better practice is to allow 10 days to be in compliance with the Rule.
Okay, that rule tells you how much time you must allow, but is there any special rule on how service must be accomplished?
South Carolina Family Court Rules, Rule 14 (e) requires that the Rule to Show Cause and the Hearing Notice must be personally served on the party being brought in for contempt. Rule 14 (e) also requires that service be accomplished by the sheriff, his deputy, or a person over the age of 18 years who is not an attorney or a party in the action.
Personal service upon the party in contempt is required by the Rule! Unlike the Summons and Complaint, and other court filed documents that can be served via First Class, Certified Mail, or by Delivery Service (FedEx), a Rule to Show Cause and Notice of Hearing must be served personally! This requirement is a safeguard for the due process rights of the accused.
STEP THREE - RULE TO SHOW CAUSE HEARING
Once there has been a filing of a Complaint, the issuance of a Rule to Show Cause by the Family Court Judge, and successful service upon the alleged violating party, there will be an evidentiary hearing pursuant to South Carolina Family Court Rule 14 (g). This hearing will allow for the submission of documents, live testimony, and is subject to the Rules of Evidence. The party who filed the complaint must first establish a prima facie case that the Court Order that is sought to be enforced has been willfully violated by the other party. Upon a showing of a prima facie case, the defending party then must overcome the burden of proof to avoid sanctions by the Court for being in contempt of the Court Order.
Sanctions for contempt of a Family Court Order can include fines, jail time if appropriate, and the payment of the filing party's legal fees if the action is with merits and awarded by the Judge.
THE MCMILLIAN LAW FIRM - YOUR CHARLESTON FAMILY LAW ATTORNEY
The Rule to Show Cause is a emotional process in Family Law that someone should not attempt to navigate without legal counsel by their side. A successful Rule to Show Cause involves tedious preparation and adherence to strict rules as formulated by the Family Court. If you are seeking or would like to pursue a Rule to Show Cause to enforce a Family Court Order, please seek legal counsel immediately!
If you live in Charleston, Mt. Pleasant, Summerville, Moncks Corner, James Island, West Ashley, Folly Beach, North Charleston, Johns Island, Walterboro, or any of the other fine communities of the South Carolina Low Country, do not wait another moment. Act now!! Contact The McMillian Law Firm and scheduled your free Family Law consultation today. 843-900-1306 or email me directly at [email protected]