In the March 16, 2022 opinion in Jacobs v. Zarcone, 436 S.C. 170, 871 S.E.2d 211 (Ct.App. 2022), the Court of Appeals affirms an award of custody to a stepmother and an award of visitation to paternal grandparents. In doing so it opens the door to future vexatious litigation by stepparents and grandparents.
The Jacobs opinion presents a highly unusual (and detailed) fact pattern. Both the family court and the Court of Appeals awarded Stepmother custody but, for reasons nowhere apparent in the opinion, avoided the easiest rationale for doing so. Further, they awarded Paternal Grandparents autonomous visitation in what appears to be contravention of the grandparent visitation statute and recent Supreme Court precedent. Additionally, it isn’t clear why court-ordered grandparent visitation was even necessary.
Jacobs involves tragic circumstances. The children’s parents, Allen Jacobs and Ashley Zarcone, divorced in 2013 with Mother having primary physical custody of the parties’ two children. Both parents remarried and Mother had another child with her new husband, David Zarcone. Visitation was then modified in February 2015. Within days of that order, evidence that Stepfather was abusing one of the children, D.J., emerged. Stepfather claimed D.J. had slipped in the bathroom; Father’s family noticed bruising all over D.J.’s body and took him to the emergency room. The pediatric emergency room physician found the pattern of bruising on D.J. inconsistent with typical child falls. The children reported physical abuse by Stepfather, which Mother refused to believe. DSS began investigating and issued safety plans prohibiting Mother from allowing her children to be around Stepfather.
Despite these safety plans, Mother continued to claim the allegations against Stepfather were false and continued to expose the children to him. One of these exposures led to Stepfather injuring D.J. again. The children continued to report new physical abuse by Stepfather. Eventually, while Mother and Stepfather were traveling to Florida with the children (in contravention of the safety plan), they were involved in altercation, which resulted in Stepfather’s arrest for criminal domestic violence. Shortly thereafter DSS indicated a case against Mother. Father then filed this custody modification case.
At the first temporary hearing, Father was awarded custody of his children with Mother and Mother’s visitation was supervised. Two months later, Father was killed while in the line of duty as a police officer. Mother filed a motion for temporary relief, seeking return of the children; Stepmother, Meghan Jacobs, intervened to seek custody; Paternal Grandparents, David and Tamila Jacobs, intervened to seek visitation. At that hearing, the family court awarded custody to Stepmother and continued Mother’s supervised visitation. In January 2016, DSS returned the child had with Stepfather to Mother, with a strict no contact provision between Stepfather and the children.
After trial, the family court awarded sole custody of the children to Stepmother. The family court found Mother unfit due to her inability to protect the children’s physical, mental, and emotional well-being and emphasized its concern regarding Mother’s refusal to believe the children’s allegations that Stepfather was physically abusive, despite the evidence from experts and DSS caseworkers. The family court held Stepmother was the children’s Psychological Parent and de facto custodian and determined it was in the children’s best interests to remain in Stepmother’s sole custody. The family court’s order awarded Mother supervised visitation and provided Paternal Grandparents visitation to be coordinated with Stepmother. Mother appealed not only the award of sole custody to Stepmother and the requirement that her visitation with the children be supervised, but the visitation awarded to Paternal Grandparents. Mother did not appeal the family court’s finding that awarding custody to Stepmother was in the children’s best interests.
On appeal Mother argued that she could not be unfit because DSS allowed her to regain custody of the child with her husband. The Court of Appeals rejected that argument. It noted “serious concerns about Mother’s ability to protect the children from David given her repeated violations of the ‘no contact’ provision in the second DSS safety plan, her continuing refusal to believe David injured D.J., and her minimization of other incidents.” Mother’s testimony indicated a clear disbelief that Stepfather had abused the children. Both the guardian ad litem and the children’s therapist noted Mother’s pattern of minimizing Stepfather’s behavior and not believing the children.
The DSS caseworker testified that she did not believe Mother or Stepfather had made behavioral changes and Mother continued to minimize the situation. She indicated she felt comfortable closing the DSS case because of the no contact provision between Stepfather and children would remain a court order.
There was abundant evidence of Mother’s unfitness to parent her children with Father. Further, with Father deceased and Stepmother having cared for these children in the years leading up to trial should have been sufficient to sustain the family court’s custody determination. S.C. Code § 63-3-550 gives anyone standing to seek custody of a neglected or delinquent child and Stepmother was the most logical choice to receive custody. Rather than end the analysis there, the family court and the Court of Appeals addressed the factors of Moore v. Moore, 300 S.C. 75, 79–80, 386 S.E.2d 456, 458–59 (1989), and the doctrines of Psychological Parent and DeFacto Custodian.
The Moore factors apply when a parent attempts to regain custody from a non-parent. Mother contended these factors didn’t apply because she never relinquished custody to Stepmother. Since a threshold factor in Moore is that the parent is fit and the Court of Appeals found Mother to be unfit, I would think it immaterial whether the Moore factors applied; according to the Court of Appeals they do.
The Court of Appeals further affirmed Stepmother’s standing as a Psychological Parent because Father had fostered Stepmother’s parent-like relationship with the children while he was alive. The Court of Appeals noted the amount of caregiving Father delegated to Stepmother while he worked. The court’s Psychological Parent analysis focuses on Father’s, not Mother’s, delegation of parent-like duties to Stepmother.
Can all stepparents claim Psychological Parent status if they handle significant parent-like duties? Can a stepparent argue Psychological Parent status against a parent who has never delegated these duties to the stepparent? Jacobs appears to answer these questions in the affirmative. I predict many stepparents injecting themselves into custody disputes if Jacobs remains good law. As noted above, Stepmother did not need to be a Psychological Parent to be awarded custody. I believe this Psychological Parent analysis to be both dangerous and unnecessary.
The Court of Appeals vacated the portion of the family court’s order finding Stepmother to be a de facto custodian because the Children were not in Stepmother’s sole custody for one year prior to the commencement of this litigation. It noted the controlling statutory language of S.C. Code Ann. § 63-15-60(A)(2).
The Court of Appeals further affirmed the award of grandparent visitation between Stepmother and Paternal Grandparents based upon alleged visitation denial by Mother. There was no finding that Mother’s visitation denials lasted in excess of ninety days, as required by S.C. Code § 63-3-530(A)(33). Moreover, while the family court’s order indicated the visitation would be as mutually agreed by between Stepmother and Paternal Grandparents, the schedule if agreement could not be reached was well in excess of what the Supreme Court approved of in Bazen v. Bazen, 428 S.C. 511, 837 S.E.2d 23 (2019).
Again, I see this grandparent visitation decision leading to family court mischief. There is no evidence that Stepmother and Paternal Grandparents did not get along. Given that Stepmother was awarded custody, why was autonomous grandparent visitation necessary (even if Stepmother specifically requested it)? Further, there is no evidence in the opinion that Paternal Grandparents met the statutory requirements of being unreasonably deprived of visitation for a period exceeding ninety days. Finally, to the extent Paternal Grandparents were being denied visitation it was Mother denying it. Mother was not awarded custody. Can a non-custodian’s denial of grandparent visitation give rise to autonomous grandparent visitation? I doubt that is what the state legislature intended when it redrafted the grandparent visitation statute.
Jacobs presents a novel issue in that a parent who had custody of one of her children was still deemed unfit to parent her other children. From the facts presented in this opinion, I don’t disagree with the conclusion. However, once that conclusion was reached all the Moore factors, Psychological Parent, and grandparent visitation analysis became unnecessary. While Jacobs reached a correct result on custody, the opinion itself may be the cause of much future family court mischief from stepparents and grandparents.
