Standard Visitation for Actively-Involved Non-Custodial Parents (September 2001)

Material for South Carolina Bar “Hot Tips” Lecture, September, 2001

Paparella v. Paparella, 340 S.C. 186, 531 S.E.2d 297 (Ct.App. 2000) is an important case for any parent seeking to get more than “standard” visitation. Paparella involved a custody dispute between two divorcing parents who had been actively involved raising their children. The family court awarded mother custody and awarded the father “standard” visitation of alternate weekends, one week at Christmas, four weeks in the summer, and alternating holidays. The father appealed. The Court of Appeals upheld the award of custody but reversed the award of visitation, greatly increasing the father’s visitation to alternating three day weekends, one overnight each week during the weekdays, and one-half of the summer. In doing so, the Court of Appeals increased his visitation from approximately 79 nights to approximately 146 nights a year. Both parties petitioned for certiorari, the mother claiming that father’s visitation was now excessive, but both petitions were denied. Shearouse Adv. Sh. 7 at p. 9 (February 7, 2001).

The Paparella decision signals a break with past appellate court decisions regarding shared custody. Previously, the South Carolina appellate courts have almost uniformly rejected shared custody arrangements. See e.g. Avin v. Avin, 272 S.C. 514, 252 S.E.2d 888, 888-89 (1979); Courie v. Courie, 288 S.C. 163, 341 S.E.2d 646, 649 (Ct.App. 1986). Admittedly, the holding in Paparella may be limited to its rather unusual fact pattern: while the Paparellas were married, they worked as pharmacists at the same drugstore and were able to arrange their schedules so that one parent was home with the children while the other parent was at work.

Had the Paparella decision merely affirmed a lower court’s award of shared custody it would have been noteworthy. However, in imposing this substantially-increased level of visitation, the appellate courts may be rejecting as insufficient “standard” visitation for parents who are actively-involved in raising the children and participate in the children’s day-to-day activities.

While South Carolina has never statutorily defined “standard” visitation, most judges’ “standard” visitation schedules are downright miserly. Typically, the standard visitation schedule includes a 48 hour period on alternating weekends, alternating holidays, a week at Christmas and three to five weeks during summer. Under this schedule, the noncustodial parent frequently goes twelve days without seeing the children, a point noted by the Court of Appeals in increasing Mr. Paparella’s visitation. Paparella, 531 S.E. 2d at 300. More “liberal” judges might add an off-week afternoon visitation period, but this still left parents going a week or more without seeing their children.

Some courts have attempted to create a more liberal standardized visitation schedule. For example Florida’s Tenth Judicial Circuit developed a standardized visitation schedule that provides the noncustodial parent lengthy afternoon and evening visitation one weekday each week and increasing amounts of summer visitation as the child ages. This schedule at least provides that the noncustodial parent does not go more than a week without seeing his or her children. Part of the South Carolina family court’s resistance to more liberal visitation may have been the appellate court’s traditional resistance to shared custody. See Avin, supra; Courie, supra.

However, after Paparella the courts should be more liberal in setting visitation for the noncustodial parent, especially when that parent was involved in raising the children and participated in the children’s day-to-day activities (two factors noted by the Paparella court in increasing Mr. Paparella’s visitation).

For a parent who is the primary wage-earner but remains actively involved with the children, Paparella represents a third-way between seeking custody and accepting “standard” visitation. The practitioner previously representing such a parent was often left with the unappealing options of attempting to show the primary caretaker’s “unfitness” (in order to obtain custody) or accepting a visitation schedule that did not preserve the client’s relationship with the children.

After Paparella, the option of seeking substantial visitation by showing a parent’s substantial but not primary involvement in the children’s lives is more realistic. Further, a visitation schedule that gives a parent four overnights every two weeks with some holiday and summer visitation takes that parent over 110 overnights per year and should create a shared custody situation suitable for Schedule C of the child support guidelines.

In situations in which a parent was actively involved with the children, but not the children’s primary caretaker, Paparella provides authority for a visitation schedule that allows that parent substantial time with the children, enabling that parent to preserve and develop his or her relationship with the children. Coupled with the 1999 adoption of shared custody guidelines it may shift the focus of many child-related disputes from “who gets custody of the child” to “how much time will each parent spend with the child.”