South Carolina Emergency Custody Motion

Introduction

Key Things to Know

1. 1

   If your child is in immediate danger, call 911 now. A court filing takes time and cannot replace emergency help.

2. 2

   South Carolina calls this ex parte temporary relief in family court under Rule 21(g), SCRFC, which follows the temporary restraining order protocol of Rule 65, SCRCP. The family court may order it to protect the health, safety, or welfare of a child, and/or to avoid irreparable harm.

3. 3

   Rule 65(b) requires specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon. The court decides whether that is met, and no order is guaranteed.

4. 4

   Ordinary temporary-relief motions under Rule 21 require service of the motion and notice of the hearing at least 20 days before the hearing, which is set 21 to 45 days after the request is filed. Ex parte relief without notice is available only on the Rule 65(b) showing.

5. 5

   An order granted without notice must be endorsed with the date and hour, filed forthwith, and served on the adverse party. It must define the injury, state why it is irreparable, and state why it was granted without notice.

6. 6

   A TRO granted without notice expires within the time the court fixes, not to exceed 10 days, unless extended for good cause for a like period (or longer by consent of the restrained party). The motion for a temporary injunction is set at the earliest possible time. No fixed number of days is given for that hearing.

7. 7

   File in the Family Court, in the action where relief is sought. If the child is present in South Carolina and abandoned, or emergency protection is needed because the child, a sibling, or a parent is subjected to or threatened with mistreatment or abuse, S.C. Code Ann. 63-15-336 gives temporary emergency jurisdiction. Ask the clerk about forms and fees.

South Carolina Requirements for Emergency Custody Motion

• Ex Parte Temporary Relief

  The family court may order ex parte temporary relief to protect the health, safety, or welfare of a child, and/or to avoid irreparable harm (Rule 21(g), SCRFC, incorporating Rule 65(b), SCRCP).

• Affidavit of Immediate Injury

  Specific facts shown by affidavit or verified complaint must show that immediate and irreparable injury, loss or damage will result before notice can be served and a hearing had (Rule 65(b), SCRCP).

• 20 Days Service for Regular Motions

  The motion and notice of the hearing must be served at least 20 days before the hearing, which is set 21 to 45 days after the request is filed (Rule 21, SCRFC).

• 10-Day Limit on a TRO

  A TRO granted without notice expires within the time the court fixes, not to exceed 10 days, unless extended for good cause for a like period (Rule 65(b), SCRCP).

• Contents of an Order Without Notice

  The order must be endorsed with date and hour, filed forthwith, served, define the injury, and state why it is irreparable and why it was granted without notice (Rule 65(b), SCRCP).

• Temporary Emergency Jurisdiction

  A South Carolina court has temporary emergency jurisdiction if the child is present and abandoned, or emergency protection is needed because the child, a sibling, or a parent is subjected to or threatened with mistreatment or abuse (S.C. Code Ann. 63-15-336).

• Sworn Facts Tied to the Standard

  The motion states specific facts of the emergency in an affidavit sworn before a notary and ties them to immediate and irreparable injury before notice can be served.