Does the De Facto Custodian statue limit or implicitly overrule Moore v. Moore?

Posted Friday, February 3rd, 2017 by Gregory Forman
Filed under Child Custody, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

Comments from attorneys and litigants who’ve made this argument are most welcome

Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456, 458 (1989) is the seminal South Carolina case on the factors the court should consider in determining whether to return a child to a parent after that child has lived with a non parent for a period of time. It sets forth a four-part test in which one, but only one, of those tests is whether the parent is fit.

In 2009 I was appointed to be a guardian ad litem in a custody case between a maternal grandmother and her daughter. The attorneys for both parties assumed that if I found mother fit, that would result in mother getting custody. Given the Moore factors, I wasn’t so sure. I decided to analyze every case that cited Moore and the Moore factors to see how the South Carolina appellate courts resolved the issues.

After doing that research, it appeared my colleagues were right. In published opinions, parental fitness was perfectly predictive of whether custody would be returned to the parent. There have been no new reported cases dealing with this issue since 1998 (indicating the matter appears to be settled law) and anecdotally one hears of very few cases in which a family court judge leaves a child with a third party when a fit parent seeks to reclaim custody.

Yet, while I agree with the case law holding that no fit parent should lose custody to a third party, I am not sure that fitness alone should be outcome determinative when a parent tries to regain custody. Sometimes so much time has elapsed that the third party has become a de facto parent.

In 2006 South Carolina enacted a De Facto Custodian statute, now S.C. Code § 63-15-60. That statute defines a “de facto custodian” as:

[A] person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who: (1) has resided with the person for a period of six months or more if the child is under three years of age; or (2) has resided with the person for a period of one year or more if the child is three years of age or older.

The statute authorizes the court to grant a “de facto custodian” “visitation or custody of a child” if the parent is unfit or if “other compelling circumstances exist.” No guidance is provided on what defines “compelling circumstances.”

Changes to the South Carolina code are not well publicized, especially if the change is not a major overhaul. I didn’t become aware of the De Facto Custodian statute until 2012. No reported opinion references it. However I have used that statute, and other attorneys are beginning to use that statute, to enable third parties to obtain custody.

Can the statute be used to help such third parties keep custody when a prior final order grants them custody and a parent files an action seeking return of the child? Prior to its enactment there was no statutory authority to award a third party custody of a child if a parent was fit. Now there is. South Carolina’s legislature has created a class of people having specific rights to a relationship with a child that is not biologically theirs. When a child has been relinquished to a non parent for such a length of time that the child sees this third party as a “parent,” it can be cruel to remove the child from the “de facto custodian” To the extent Moore routinely led to the return of a child to a fit parent, this statute may call, on occasion, for a different result.

Has the De Facto Custodian statue limited or implicitly overruled Moore v. Moore? I don’t know. But for attorneys defending the custody rights of third parties, it’s an argument worth making.