The May 23, 2018 Court of Appeals opinion in Urban v. Kerscher, 423 S.C. 615, 817 S.E.2d 130 (Ct. App. 2018), reverses a Family Court’s continuation of custody to third parties and returns the child to Mother.
In 2014 Mother placed her daughter with Leo Kerscher and Mary Crew to pursue and secure a permanent home and employment in Pennsylvania. She originally intended this placement to last one summer but, when her plans fell through, she left the child with Kerscher and Crew. When Kerscher and Crew were unable to obtain medical care for the Child with the paperwork Mother had executed, they sought and obtained legal and physical custody in September 2014. Mother did not participate in this initial case.
Two months later Mother filed this action in the family court seeking to regain custody of her daughter. At both the temporary hearing and trial, the family court left custody with Kerscher and Crew but granted Mother visitation. Mother appealed the final order.
The initial issue for the Court of Appeals’ determination was whether Mother had to show a substantial change of circumstances to regain custody or whether the family court should have applied the factors established in Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989) (which set forth a four-part test for the family court to apply when a parent attempts to regain custody from a third party). The family court found Mother had failed to meet her burden under either criteria. The Court of Appeals found that the Moore factors govern exclusively.
The Court of Appeals then applied the Moore factors to determine that custody should be returned to Mother. In doing so, the Court of Appeals rejected the family court’s determination that Mother was unfit–a determination that seems at odds with the family court’s award of visitation. The family court based this untfitness finding on Mother being unemployed and dependent on her fiancée for financial support and housing. The Court of Appeals took the opposite view:
Financial dependence on a significant other should not reflect poorly on a natural parent’s ability to provide a good home unless the significant other is not in a position to provide financial support.
The Court of Appeals further noted that the guardian conceded that Mother was fit. Finding Mother to be fit, the Court of Appeals then examined the three remaining Moore factors (Contact in the Form of Visits and Financial Support; Circumstances of Temporary Relinquishment; Degree of Attachment between Child and Temporary Custodian) before concluding:
We acknowledge Kerscher and Crew are able to provide a good home for Child. However, the question is not who has the most suitable home at the time of the hearing but whether circumstances overcome the presumption that a return of custody to the biological parent is in the best interest of the child. We find the presumption has not been overcome and custody of Child should be returned to Urban.
Furthermore, it is commendable that Urban recognized her previous inability to care for Child and, in good faith, left Child with people willing and able to provide for Child while Urban attempted to better her family’s circumstances. Child’s custody should not be subject to adverse possession when Urban is a fit parent who has substantially remedied the circumstances surrounding custodial relinquishment.
Citations omitted.
In 2010 I undertook research on the Moore factors, resulting in materials for a lecture: When Parents Seek to Reclaim Custody from Third Parties: Moore & Its Progeny. The two things I found most noteworthy from doing this research were: 1) in appellate court opinions a finding of parental fitness was always outcome determinative on the issue of custody; 2) after nine published decisions applying the Moore factors within a decade of the Moore decision, no published opinion had applied those factors since 1998.
Urban is noteworthy in that it continues the pattern of fitness being outcome determinative and in applying the Moore factors in a published opinion for the first time in a twenty years. It also resolves an issue I had not spotted when I did the research in 2010: the Moore factors apply even when there is a final order giving third parties custody. In reaching this resolution Urban establishes important law regarding parents trying to retain custody of their children from third parties.
