PARENT'S RIGHTS NOW!

1. The computer system used in Family Court is outdated;
2. The Clerk who determines whether an arrearage exists made a mistake in interpreting the relevant Order;
3. There is no one to assist the Trial Judge in making factual determinations;
4. Once the determination of Contempt is made, there is no way to avoid incarceration.

There may be no practical solution to avoid wrongfully jailing some people who are not guilty of contempt. However, most of the problems which I have outlined could be avoided in the future if:

1. A party who acts on the advice of counsel could not be deemed to be in willful Contempt of Court;
2. Parties who are held in Contempt were given a meaningful opportunity to purge themselves of Contempt before being processed (this means having access to bank machines);
3. Parties were allowed to either post bond to avoid incarceration or avoid incarceration pending an appeal or rehearing on the matter;
4. All Rules had to be supported by an Affidavit from the aggrieved party rather than from the Clerk;
5. The prevailing party would be awarded attorney's fees;
6. The prohibition against ex parte communications between an attorney and a judge were extended to include communications delivered by the attorney's employees to the judge through the Clerk; and,
7. Judges who repeatedly improperly jail people without a proper showing of Contempt were required to attend appropriate Family Court Seminars and to pass a proficiency test.

In the Wednesday night Charleston meeting, I was struck by how many other problems in Family Court have readily available, simple solutions. I was also struck by how many many people have had experiences similar to mine. From what I heard, it is clear that some Judges ignore the law, the Family Court Rules and Rules of Civil Procedure on a more frequent basis than others.

I never answered the Family Court Subcommittee Questionnaire so I am taking the time to do so now.

Do Family Courts possess sufficient support and research resources to effectively and efficiently process their caseloads?

No. Family Court Judges do not draft their own Orders and only rarely provide written instructions when directing the "winning" lawyer to draft the Court's Order. The lawyers who draft the Orders may have a few lines of written instructions but never - except in rare circumstances - have the benefit of a Transcript of the Hearing. Consequently, they draft the Orders to suit their clients' position and do no make an effort to comply with the requirement that Orders "set forth the specific findings of fact and conclusions of law to support the court's decision." (See, South Carolina Rules of Family Court, Rule 26(a)) Because the order is drafted by the "winning" side, there are no safeguards for litigants to receive Orders that accurately reflect either the proceedings or the judge's decision. Some lawyers even make up facts to support the Judge's decision, a practices criticized by our Court of Appeals in at least one decision.

In my experience, I have found that the lawyers rarely, if ever, submitted proposed Orders to the Court within the prescribed time frame. In at least one instance, my attorney was directed to prepare an Order when he had lost on every major issue in the case and expressed complete bewilderment at how the Trial Judge reached her decision. Because we had no memorandum of her reasoning, we had to grope in the dark regarding the basis for her decision.

In another instance, while I was acting pro se, opposing counsel faxed the trial judge a proposed Order without providing a copy to me in the same manner as required by the Rules. Before I was even aware that the proposed Order had been transmitted to the Judge and without waiting to determine whether I had objections, the Judge executed the faxed copy.

The end result of these practices is that litigation is needlessly prolonged and litigants constantly have to return to Court to correct mistakes that could have been avoided in the first place if people just had access to e-transcripts. Moreover, if the Judges simply adhered to the Rules in effect and properly set forth findings of facts and conclusions of law, much unnecessary litigation can be avoided. This incompetence may be caused, in part, by the lack of support staff. Circuit Court judges have the benefit of law clerks to assist them in drafting proper orders. I cannot understand why Family Court, which short of death penalty cases, deals in the most important issues brought before a court, should not have similar resources.

Does the system have a sufficient number of Family Court judges?

My experience is that there are enough Family Court Judges, but that too often the Judges:

• Do not read the pleadings and/or Affidavits;
• Allow Affidavits to include hearsay or unsupported allegations that initiate an action without good cause;
• Do not require the submission of Pre-Trial Briefs, and;
• Rely too much on the unsworn statements of the lawyers in reaching their decisions.

Consequently, a simple Hearing turns into two continuances, several delays in scheduling, and a Motion for Rehearing - all at tremendous expense to the litigants. Perhaps if the efficiencies in the system relied more on getting it right the first time, the existing number of Judges would have less work to do and the number of Family Court judges would be sufficient.

Are the Clerks of Court sufficiently staffed and trained to effectively and efficiently manage their caseloads?

Who knows? I only know from personal experience that some folks can get hearings any time they want them and others never seem to be able to get them. For the last three or four years, virtually every hearing in which I have been involved occurred during my visitation periods with my sons while my ex-wife's attorney obtained continuances on the flimsiest of excuses.

Does our current family law need to be changed to promote and encourage less costly alternatives to contested divorces, support, and custody actions at an earlier stage of marital dissolution?

I would favor more arbitration or mediation and less litigation, provided that people were required to act in good faith and not just give the process lip service. Some sources indicate that the effect of no-fault divorces increase the cost of litigation and discourage people from trying to work out their difficulties. I also believe that some attorneys encourage discord and unreasonableness and discourage good faith settlement negotiations because it increases their fees. For example, my ex-wife's attorney wrote a letter to my children's Orthodontist telling him that he could not put braces on our sons' teeth and that I could not authorize such treatment. My ex-wife and I have Joint Custody, though she has primary physical custody (whatever that means.) The Court of Appeals has indicated that we are supposed to consider the best interests of the children, but that does not mean that she will allow braces to be placed on the children without litigation. My ex-wife's attorney - who happens to be her employer - advises her to fight me on everything, so she does. I keep winning the litigation, but winning is about to put me in the poorhouse.

At the Subcommittee Hearing on Wednesday in Charleston, local attorney Emily Johnston suggested that "joint custody should be the default position and parents should have Joint Custody unless one parent is shown to be unfit." I agree, but there must be a better definition of "joint custody." In my mind, it is as simple as this: I should be allowed to pick my sons up after school while they are in a day care and take them fishing or to a church function without obtaining the permission either of my ex-wife or the Court. If arbitration would help resolve some of these types of disputes, then I am all for it.

Does our current family law need to be changed to encourage greater pre-marital counseling in an effort to reduce the frequency of divorce in our State?

No, people would just not get married. I think that the Judges should make more effort at reconciliation. I also think it is too easy to get a divorce. There ought to be some grounds other than "my husband is controlling" or "my wife is a bad cook." I got married in the Greek Orthodox Church with the expectation that it was a life-long commitment and that we would endeavor to work thorough our problems. My wife never claimed that I would not support her, or that I drank to excess, or that I cheated on her, or anything of that nature. She just wanted out of the marriage and I discovered that there was nothing I could do about it. I also discovered that, although the marriage was of short duration and that the property we acquired was acquired primarily through my efforts, my choices were either to give my wife half of it or give it to the lawyers at close to $500 an hour.

Does our current law regarding child support and alimony need to be changed?

I think the whole idea of civil contempt needs to be reconsidered. Criminals are afforded more protections than those accused of not paying child support or of not returning their children after visitation.

Does our present system permit an abuse by litigants seeking and obtaining protective orders to gain an advantage in custody disputes, and if so, what changes need to be implemented to prevent this from occurring?

I have had no experience with this, so cannot say.

Are Family Courts devoting sufficient time to temporary hearings, considering the issues presented and the impact on the litigants?

No. I have been before Judge Segars-Andrews numerous times both with and without an attorney. I do not believe she has ever read a file before I entered the courtroom. Nor do I think she reads the Supreme Court Opinions reversing her, the Affidavits, or the Memoranda of Law presented to her. If she does read them, she apparently does not understand them.

Would the use of special referees to decide uncontested matters unburden Family Court judges and enable them to devote more attention to temporary hearings and contested cases?

This might help. Local attorneys Margaret Fabri, Melissa Brown, and Emily Johnston all had suggestions at the Wednesday night Charleston meeting for improving the system that struck me as being reasonable.

With kind regards, I am,

Sincerely,

Dennis Fassuliotis

cc: The Honorable James Ritchie, Jr.

The Honorable Robert Ford

The Honorable William C. Mescher

The Honorable John M. Knotts, Jr.

The Honorable Gerald Malloy

# posted by PARENT'S RIGHTS NOW! @ 12:48 PM