In the July 19, 2023, Court of Appeals opinion in Fossett v. Fossett, 440 S.C. 576, 891 S.E.2d 515 (Ct.App. 2023), the Court of Appeals affirmed the family court’s denial of father’s custody modification request. It did so, in a large part, due to concerns that the children’s custodial preference was the result of Father’s manipulative behavior.
The Fossetts were parents of sons aged 10 and 15 at the time of their divorce. That divorce decree granted Mother primary custody and Father visitation rights. A year and half later Father filed a custody modification action. He alleged two primary grounds: the sons’ preferred to live with him and his remarriage. The family court appointed a guardian who met with the boys on four separate occasions. At trial, she testified that the children preferred to live with Father but expressed concern that this preference was likely influenced by Father’s manipulative behavior. She also stated that neither child harbored any ill-will toward either of the parents and both exhibited high educational and extra-curricular performance.
The family court denied Father’s custody modification request and ordered Father to pay a portion of Mother’s attorney’s fees and (it appears but isn’t clear) all of the guardian’s fees. Father appealed.
By the time this opinion issued one son had emancipated and thus the opinion did not address his custody. At the time of trial, the other child was ten years old. The Court of Appeals affirmed the family court’s decision not to change custody despite the ten-year-old’s preference. It noted prior case law had given little weight to the preference of a ten-year-old. It further noted that Father’s manipulative behavior towards the child counterbalanced the preference issue, citing S.C. Code Ann. § 63-15-240(B) (providing an inexhaustive list of considerations for courts when determining the best interest of the child, including “the preferences of each child” and “the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute”).
The Court of Appeals found Father’s sharing with the children email conversations between him and Mother, in which he was highly critical of Mother, was the type of manipulation anticipated by § 63-15-240(B) (7) and that “such manipulation in the child custody context need not be an intentional effort to alter a child’s custodial preference.” Further, the guardian testified that she viewed the sharing of these communications as evidence of manipulation. Thus, the Court of Appeals declined to give weight to the ten-year-old’s preference.
The Court of Appeals also noted Father’s remarriage and post-marital family environment was not a basis to modify custody. “While the record reflects that Father has fostered a healthy home environment for the boys, the GAL determined that the children are equivalently served in Mother’s care. Also, absent additional supporting factors, remarriage is insufficient to modify a custody decree.” The Court of Appeals further held Mother’s homeopathic treatment of one child’s severe eczema was not a basis to modify custody, as it did “not believe that Mother’s actions reflect a dereliction of her responsibility to understand and meet the medical needs of her children.”
The Court of Appeals rejected Father’s arguments on the attorney fee award, finding that the family court did not find his litigation conduct was uncooperative and that it properly weighed the financial issues. It further affirmed the GAL fee award. It found Father’s argument that the guardian had exceeded her fee cap was not preserved because he did not raise it to the trial court. It found the Father, as an instigating party who did not prevail, “must pay the GAL fees.”
I believe Fossett is the first reported custody opinion addressing a child’s preference since South Carolina enacted section 63-15-240(B)’s statutory custody factors. The interplay of custodial preference and parental manipulation recurs frequently. It’s not surprising that manipulation negates preference.
Is it ethical for a Guardian to ask a minor (9 years old) who he prefers to live with? There’s statutory on this, that age 12-15 is appropriate. During a case of mine, the Guardian never acknowledged the relationship my son had with his older sister whom he grew up with, however, because father remarried during our case and recently had a child, the Guardian only then started to establish that my son had a younger sister and talk about the relationship my son had only with his baby sister vs the 9 year relationship he’s had with his older sister. I believe the Guardian was manipulated by father in my case; including my son being manipulated/coached on what to tell the Guardian by father. Guardian found comments made by my son that father had spoken to him of negatively about mother in her preliminary report at fathers residence. Guardian further down the case, after this finding, believed everything father would email her in a negative light about mother, asking Guardian to speak to the minor child at his residence about negative comments and would not investigate with mother. All negative comments made against mother took place at fathers residence only. There were never any negative comments made by my son at my residence towards his father that Guardian provided. Guardian has made assumptions about mother without investigating and provided this information to the courts. Mothers witnesses to attest physical/verbal abuse were not mentioned on any of Guardians reports. Trial witnesses of father, under oath, lied on the stand to the Judge. Father lied on the stand under oath about finances. Discovery was made of these lies, but since our Judge became very ill, taking over 60 days for a decision with no return back to office when it should have been decided in 2 weeks; I believe fathers lawyer/Guardian pressured the court system for an answer and everything has remained as it was temporarily. Nothing in our orders changed and I was discriminated against for my “culture” written on family court documents. I am labeled to be a complete fit mother both physically, mentally and financially across all of Guardians reports and during trial.