Should custody be dealt with in a separate order?

Posted Thursday, October 27th, 2016 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I recently completed a divorce case in which all issues other than child custody settled in the middle of trial. With the court’s permission, I drafted a separate final order addressing the ground for divorce, property division, and spousal support. When the judge issued her final ruling, I drafted a separate final order addressing custody.

Meanwhile, I typically have an evolving set of 5 to 10 cases in which my client’s access to the child(ren)’s school and medical records and personnel is an issue. Per S.C. Code § 63-5-530, “Each parent, whether the custodial or noncustodial parent of the child, has equal access and the same right to obtain all educational records and medical records of their minor children and the right to participate in their children’s school activities unless prohibited by order of the court.” However, experience shows that many schools and medical providers want a court order authorizing them to provide information to the non-custodial parent before they will do so. Generally, when my client is having trouble accessing such records, my first advice is for him or her to give the provider a copy of the custody order.

Other times my clients will showing their custody orders to law enforcement when a dispute arises over which parent has the right to access to the child. A sizable portion of my “emergency” phone calls from clients involve such disputes, and often law enforcement is present when I receive these calls. While few “beat” officers have law degrees, often they will attempt to interpret custody orders and attempt to resolve disputes as to which parent has the right to the child at that particular moment.

When custody orders address other issues, showing these orders to law enforcement, or medical and educational providers, gives such individuals access to information about my client that they really don’t need to know. In resolving who gets the child this Thanksgiving, law enforcement does not need to know that my client received $40,000 from her ex-husband’s retirement. In confirming my client has full rights to speak to the child’s school teacher, the school doesn’t need to know that my client committed adultery.

The experience of drafting a separate custody order, coupled with the frequent sharing of custody orders with third-parties, leads me to conclude that it might be best practice to draft two final orders in each custody case: the first dealing with all issues other than custody and, in cases where custody is resolved by the judge rather than through an agreement, an explanation of the court’s reasoning for determining custody; the second solely addressing custodial rights. That way, when parents need to share their custody orders, they aren’t forced to reveal extraneous or embarrassing information. While drafting two separate orders is a bit more work, doing so would help many parents preserve their dignity.