Dec 19

Startling New Appellate Rule: Custody Cases Must Be Decided Promptly!

Written by: Megan Dell


We’ve blogged before about how the appellate process works and the rules of appellate procedure. Recently, there have been some changes in how long appeals related to custody and visitation will take to resolve. Learn more about this new appellate rule in this article.

new appellate rule south carolina

History of Appellate Review

The South Carolina Constitution gives our unified judicial system, and its courts, jurisdiction over cases as may be provided by law. The South Carolina Family Court was created by our legislature in 1977.

South Carolina appellate courts have – historically – had a tendency to affirm the findings of fact made by the Family Court for two reasons: (1) a belief that the trial judge is in a better position to determine credibility, and (2) the appellant’s burden to demonstrate that the preponderance of the evidence is against the finding of the trial court.

Over time, the deference given to the Family Court was interpreted as a requirement that an appellant must show an “abuse of discretion” to prevail when appealing the trial court. Between 1977 and 2011, our reviewing courts often applied the “abuse of discretion” standard when reviewing Family Court decisions.

However, the South Carolina Constitution has always provided that appellate jurisdiction in cases of equity includes review of the findings of fact and the law, and Family Court is a court of equity.

What is De Novo Review?

In Lewis v. Lewis, 392 S.C. 381 (2011), our Supreme Court detailed the above history and reiterated that the appropriate standard for review of Family Court decisions is “de novo.” 

In essence, in an appeal from the Family Court, the appellate court has jurisdiction to find facts in accordance with its own views of the preponderance of the evidence. 

How Has Appellate Practice Changed?

Because the Lewis opinion renewed our appellate courts’ application of de novo review, litigants who are unhappy with the result of a trial in Family Court have had greater incentive to appeal those decisions.

When more litigants file appeals, the Court of Appeals and Supreme Court have more cases to manage, and cases take longer to resolve. In recent years, an appeal to the Court of Appeals could take 1 to 3 years to be resolved. However, cases related to custody of minor children with the Department of Social Services (DSS), termination of parental rights, and adoption proceedings were to be decided expeditiously.

Then, if a party did not like the South Carolina Court of Appeals’ decision, they could seek review by the South Carolina Supreme Court, which would cause the case to drag on for even longer.

Practical Example: Rossington v. Rossington

A recent case, Rossington v. Rossington, highlights how a delayed appellate process can affect resolution of cases. In that case, which was filed in January 2017, the Family Court trial did not occur until November 2018, and the Court did not enter its Amended Final Order and Decree of Divorce until July 2, 2019.

Following filing of the appeal and briefing by both parties, the Court of Appeals issued its opinion on January 12, 2022. In that opinion, the Court of Appeals affirmed the Family Court’s decision in part, reversed it in part, and remanded it for further consideration in part.

Thereafter, on November 23, 2022, the Supreme Court granted the petition for certiorari to review three legal issues raised in its opinion in Rossington v. Rossington. Our State’s highest court noted: 

The matter of physical and legal custody of the parties’ minor child has been in contention for almost six years—since the child was two months old. We regret the delay caused in part by our state’s court system and acknowledge considerable changes and milestones could occur for a minor child during such a substantial delay that may alter the determination of an arrangement created in the best interests of the child. Indeed, it is more than likely the amount of time that has passed since the family court’s order has resulted in a stale record incapable of reflecting facts and circumstances from which the current best interests of the child can be determined….Accordingly, we dispense with briefing, remand this matter to the family court for a trial de novo on the custody issue to ensure the custody determination is based on the current best interests of the child, and direct the family court to revise the award of attorney’s fees in light of the new trial on the custody issue.

The Rossington case is not the first in which our appellate courts have noted delays caused by the process itself. However, it appears to be the first case in which a child custody matter was remanded to the Family Court for an entirely new trial.

Appellate Case Management: New Rule About Custody Cases

Just prior to issuance of the Rossington opinion, on November 17, 2022, the South Carolina Supreme Court issued an Order regarding child issues in appellate courts. All family court case appeals regarding child custody and visitation issues, including oral arguments, will now be expedited in hopes of encouraging stability for the minor children. It is obvious that the new directive is intended to avoid situations like that in Rossington.

However, appellate timelines are short, and trial lawyers who also handle appeals commonly file motions for extension of time. This Order makes it less likely the appellate courts will grant a requested extension of time when a case involves child custody and visitation. With extensions being more guarded, appellate lawyers will likely be cautious about the cases they take, and they may begin charging higher fees.

The Rules Are Constantly Changing: Hire A Lawyer

Appellate rules are very specific, and they are constantly subject to change. If you are considering appeal of a Family Court order, your best option is to seek advice from an appellate attorney in South Carolina.

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