- —The family court may order ex parte temporary relief to protect the health, safety or welfare of a child, or to avoid irreparable harm.
- —It follows the temporary restraining order rules, which means a sworn showing of immediate and irreparable injury and an order that expires within days.
- —If a child is in immediate danger, call law enforcement first. Nothing below is a substitute for that.
If you are reading this at two in the morning because something happened today and you do not know whether it can wait, here is the short version first: South Carolina family courts can issue an ex parte order without waiting for the other parent, but only in narrow circumstances, and the order that results is short-lived by design.
Why the ordinary route is not fast enough
The usual way to get relief while a case is pending is a temporary hearing under Rule 21 of the South Carolina Rules of Family Court. That has a floor built into it: once the request for hearing is filed, the date may not be sooner than twenty-one days.
Three weeks is the right pace for most disputes. It is not the right pace when a child is being harmed.
Our post on what actually happens at a temporary hearing covers the ordinary process.
The standard for an ex parte order
Rule 21(g) is short enough to quote in full:
“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. A party who seeks ex parte temporary relief shall follow the protocol and requirements related to temporary restraining orders as detailed in Rule 65, SCRCP.”
Two things follow. The subject matter is narrow — a child's health, safety or welfare, or irreparable harm. And the procedure is borrowed wholesale from the temporary restraining order rules in the civil rules, which is where the real requirements live.
What Rule 65 actually demands
Rule 65(b), SCRCP is exacting, and understanding why explains what your lawyer will ask you for. No temporary restraining order may be granted without notice to the other side unless:
“it clearly appears from 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.”
Read that closely, because every phrase is a hurdle. Specific facts — not characterizations, not history, not what you fear generally. By affidavit or verified complaint — sworn, not asserted by counsel. Immediate and irreparable — harm that cannot be undone by an order made later. And before notice can be served and a hearing had — you must show why the other parent cannot be told first.
That last requirement is the one most requests fail on. The question is not whether what is happening is serious. It is whether it will cause irreparable harm in the days it would take to give notice.
What the order looks like, and how briefly it lasts
Rule 65(b) also dictates the form and life of the order. Every temporary restraining order granted without notice must be endorsed with the date and hour of issuance, filed forthwith in the clerk's office and entered of record, and served on the other party together with a summons and complaint if none has been served already.
The order must also “define the injury and state why it is irreparable and why the order was granted without notice.” A judge signing an ex parte order is required to explain, on the face of it, why you were allowed to proceed without the other side.
And it expires quickly. The order lapses by its own terms within the time the court fixes, not to exceed ten days, unless extended for a like period for good cause entered of record, or unless the party it is directed against consents to a longer period.
The hearing comes immediately, and the burden stays with you
An ex parte order is the beginning of a process, not the end of one. Where a temporary restraining order is granted without notice, the motion for a temporary injunction must be set down for hearing “at the earliest possible time” and takes precedence over all matters except older matters of the same character.
When that hearing arrives, the party who obtained the order must proceed with the application — and if they do not, the rule states plainly that the court shall dissolve the temporary restraining order.
The other parent also has a fast route to challenge it. On two days' notice to the party who obtained the order, or on shorter notice as the court may prescribe, they may appear and move to dissolve it.
So the realistic picture is this: a very short order, obtained on a demanding sworn showing, followed almost immediately by a contested hearing at which you carry the burden.
What to have ready
Specific facts with dates, times and places. “He has been drinking more” is a characterization. “On October 14 at 6:15 p.m. he arrived to collect the children and could not stand unaided” is a fact.
Anything documentary — messages, photographs, medical records, a police incident number.
The names of anyone who saw it. Affidavits from witnesses carry weight that your own account cannot.
A clear answer to why the other parent cannot be given notice first. This is the requirement most requests fail.
A specific proposed order. Tell the court exactly what you want it to prohibit or require.
If it is not a true emergency
Most difficult situations are not legal emergencies, and treating one as an emergency has costs. A request that does not meet the standard is refused, and the attempt is visible to the judge who will handle the rest of your case.
The alternatives are real. A temporary hearing addresses the same subjects with a fuller record. Where the concern is a child's safety during visits, the court has power to restrict or suspend visitation on a proper showing. Our post on when South Carolina courts can suspend visitation rights covers that route.
And where the other parent is not following the order, the remedy is enforcement rather than emergency relief — see how to enforce a visitation order in South Carolina.
Rule 21 also allows the family court, for good cause, to modify the scheduling, notice and time requirements it imposes, on its own motion or on a party's motion supported by affidavits. Between the ordinary three-week track and a true ex parte emergency, there is room to ask for something faster without meeting the ex parte standard.
Frequently asked questions
Can a judge give me custody today?
Only on the narrow ex parte standard — to protect a child's health, safety or welfare, or to avoid irreparable harm — and only on sworn specific facts showing why the other parent cannot be notified first.
How long does an ex parte order last?
Not more than ten days as fixed by the court, unless extended for a like period for good cause entered of record, or unless the other party consents to longer.
Does the other parent get to respond?
Yes, and quickly. The hearing on the temporary injunction is set at the earliest possible time and takes precedence over most other matters, and the other parent may move to dissolve the order on two days' notice.
What happens if I do not go forward at that hearing?
Rule 65(b) provides that the court shall dissolve the temporary restraining order if the party who obtained it does not proceed with the application.
Is calling the police the same thing?
No, and it is not an alternative. If a child is in immediate danger, contact law enforcement. An ex parte order is a civil remedy that addresses custody and contact; it is not an emergency response.
Talk to a Charleston custody lawyer
Emergency relief turns on specific sworn facts and on why notice cannot wait, and both are assembled quickly or not at all. Klok Law Firm handles South Carolina family law in Charleston, Mount Pleasant, Berkeley, and Dorchester counties. Call Klok Law at (843) 701-1695 to discuss your options.
This article is for general information only and is not legal advice. If a child is in immediate danger, contact law enforcement. For advice about your specific situation, contact Klok Law at (843) 701-1695.
Suzanne Lafleur Klok, Esq. is a family law attorney in Mount Pleasant, South Carolina. Klok Law Firm, LLC · (843) 701-1695 · sklok@kloklaw.com